06-001900F Donna M. Cameron Connolly, C.R.N.A. vs. Department Of Health, Board Of Nursing Status: Closed DOAH Final Order on Tuesday, October 24, 2006.

Summary: Petitioner was not a prevailing small business party by definition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA M. CAMERON CONNOLLY, )

R.N., C.R.N.A., )

)

Petitioner, )

)

vs. )

) Case No. 0 6 - 1900F

DEPARTMENT OF HEALTH, )

BOARD OF NURSING , 1/ )

)

Respondent. )

)

FINAL ORDER

On May 23, 2006 , Petitioner , Donna M. Cameron Connolly,

R.N., C.R.N.A, filed a motion for attorney's fees and costs

pursuant to Sections 57.041 and 57.111, Florida Statutes ( 2005 ),

in relation to the outcome in Department of Health , B o ard of

Nur sing, Petitioner v. Donna M. Cam eron Connolly, R.N.,

C.R.N.A. , Respondent , DOAH Case No. 05 - 3268PL / DO H Case No. 2004 -

34970 . Petitioner in this cause claims to be a "prevailing

small business party." § 57.11 1 (3)(c), Fla. Stat. (2005) . The

m otion is treated as an application for the award of attorney's

fees and associated costs . § 57.111(4)(a)2 . , Fla. Stat. ( 2005 ).

On June 26, 2006 , a telephone conference was held with

counsel for the parties . T hrough that discussion it was decided

that t he case would be presented without an evidentiary hearing

on the application. Instead the necessary record for entry of

the Final Order was established by filings by the respective

parties. § 57.111(4)(d), Fla. Stat. ( 2005 ). Following the

establishment of the record, the parties were allowed to submit

written arguments to support their positions.

APPEARANCES

For Petitioner: Damon A. Chase, Esquire

Chase Law Offices, P.A.

250 International Parkway, Suite 250

La ke Mary, Florida 32746

For Respondent: Katharine E . Price , Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 32 65

PRELIMINARY STATEMENT

After the application for attorney's fees and associated

costs had been filed, Respondent filed a series of Motion s to

Dismiss the application with Exhibits "A" through "C . " Those

motions will be re s olv ed through the conclusions of law reached

in this Final Order.

On June 28, 2006 , an order was entered establishing the

basis for submission of evidence and written arguments as to

timing. The schedule was amended in an order dated August 3,

2006 . The August 3, 2006 , order extend ing the time for

provision of evidence and written argument was in response to a

motion by Respondent to allow additional time to take

depositions of non - party witnesses.

On August 25, 2006 , Petitioner noticed the filing of 2003

tax return information rela ted to Petitioner as Exhibit "A ." On

that same date , Respondent filed a notice of filing additional

document s with the attached documents, Exhibits "A" and "B . "

On August 28, 2006 , separate orders were entered in

response to Petitioner 's motion for the fi ling of the deposition

transcript of Petitioner and a motion for official recognition .

Both orders denied relief. 2/

On August 31, 2006 , an order was entered receiving

transcript E xhibits "A" and "B" offered by Petitioner . On that

same date , an orde r was entered receiving E xhibit "A , " presented

in a separate motion by Petitioner , which exhibit was

constituted of a breakout of work performed by Petitioner 's

counsel. It was later corrected by an order entered on

September 6, 2006 . That order allowed the filing to remain in

place, while providing leave for Respondent to submit a counter -

affidavit to the reasonableness of the fees charged by

Petitioner 's counsel on or before September 15, 2006 . On

September 25, 2006 , Respondent 's counter - affidavit of E dwin

Bayo, Esquire, was filed in accordance with an order entered

September 14, 2006 .

On September 5, 2006 , Petitioner filed a proposed order.

On that same date Respondent filed a written argument in support

of denial of the petition for attorney's fee s and costs. Both

submissions have been considered in preparing the F inal O rder.

On September 20, 2006 , Petitioner 's counsel fil ed a

supplemental affidavit for attorney's fees and costs.

The evidence received to suppo rt the respective cases is as

follows :

For Petitioner

The attached affidavit of Damon A. Chase ,

Esquire, as to reasonable attorney's fees

and costs;

The attached affidavit of P aul C . Perkins,

Jr., Esquire, as to reasonableness of

attorney's fees and costs, also supporting

the Petitio n;

The Exhibit "A" to the notice of filing the

2003 Individual Income Tax Return for Joseph

F. Connolly and Donna C. Connolly;

The Exhibit "A" time entry report by

Petitioner 's attorney;

The deposition transcript of Donna M.

Cameron Connolly taken July 28, 2006 , as

Exhibit "A" to a motion for its admission,

together with Exhibit "B" to the motion , the

transcript of proceedings in DOAH Case No.

05 - 3268PL for the hearing held October 18,

2005 ; and

The September 20, 2006 , supplemental

affidavit by Petitio ner 's attorney for

fees and costs.

For Respondent

Exhibits attached to the several motions to

dismiss the P etition, Exhibit "A" pages 76 -

81 to the October 18, 2005 , hearing

transcript in DOAH Case No. 05 - 3268PL and

Exhibit "B" the Probable Cause Panel

transcript dated June 20, 2005 , that led to

the administrative complaint ref erred to in

DOAH case No. 05 - 32 68PL;

Exhibits attached to Respondent 's Notice of

Filing Additional Documents: Exhibit "A , "

the deposition of Erwin Velbi s, C.R.N.A.,

A.R.N. P., taken August 10, 2006 ; Exhibit

"B , " the affidavit and Probable Cause

materials related to the investigation and

Probable Cause determination associated with

DOAH Case No. 05 - 3268PL/ DOH Case No. 04 -

34970 and the counter - affidavit o n

reasonableness of fe es and costs by Edwin

Bayo, Esquire.

On October 4, 2006 , Petitioner filed a reply opposing the

Bayo counter - affidavit on attorney's fees and costs. Respondent

moved to strike the reply. Petitioner then moved to accept the

reply as timely. Given the t iming of the reply, lacking

permission to offer the reply, the reply is stricken.

FINDINGS OF FACT

§ 57.111(3)(f) Fla. Stat. (2005)

" s tate a gency"

1. The Department of Health meets the definition found

within Section 120.52(1)(b)1, Florida Statutes ( 200 5 ) , as an

"agency . "

§ 57.111(3)(b)2 . and 3 . , Fla. Stat. (2005)

"i nitiated by a state agency."

2 . On June 21, 2005, an Administrative Complaint in

Department of Health, Petitioner, v. Donna M. Cameron Connolly,

R.N., C.R.N.A, Respondent , DOH Case No . 2004 - 34970 was signed

and served on Nurse Connolly. It accused the Respondent of

violating Section 464.018(1)(n), Florida Statutes ( 2002 ) , in the

treatment and care of Patient M.M. Nurse Connolly elected to

contest material facts within the Administrat ive Complaint . On

Septem ber 9, 2005, the case was referr ed to the Division of

Administrative Hearings (DOAH) to conduct a hearing pursuant to

Section 120.57(1), Florida Statutes ( 2005 ). It became DOAH Case

No. 05 - 3268PL. The hearing was held , and , on De cember 8, 2005 ,

a R ecommended O rder was entered with a recommendation that the

case be dismissed.

§ 57.111(3)(c)1 . , Fla. Stat. (2005)

"prevailing small business party"

3 . On February 27, 2006 , the Department of Health entered

a F inal O rder dismissing the Administrative Complaint against

Nurse Connolly .

§ 5 7.111(3)(d)1a . , Fla. Stat. (2005)

" s mall b usiness p arty"

4 . The incident involving Patient M.M. that related to the

Administrative Complaint took place on March 13, 2003 .

5 . On the date Nurse Connolly cared for Patient M.M. S he

did so at Endosurg Outpatient Center (Endosurg) in Lady Lake,

Florida , a gastroenterologist practice. She was providing

anesthesia to the patien t during a colonoscopy . She was acting

as an independent contractor for a limited period of time in her

engagement with Endosurg . It is her routine to take temporary

positi ons in providing her services.

6 . Nurse Connolly works through placement agencies who

serve clients who have the need for anesthesia coverage by a

C.R.N.A. The placement agency , Nature C oast A nesthesia

Providers (Nature Coast) , had contacted Respondent to determine

her interest in working for two weeks at Endosurg. For the

services provided at Endosurg , Nurse Connolly had a verbal

agreement with Na tur e Coast that formed the basis for her pay.

The equipment and materials necessary to perform he r duties at

Endosurg were to be provided by tha t e ntity .

7 . In addition to the equipment provided by Endosurg ,

Petitioner Connolly had certain equipment o f her own , including

a stethoscope and an ambu - bag.

8 . At the time that the incident involving Patient M.M.

occurred, Nurse Connolly had worked for Endosurg in two separate

facilities for seven days.

9 . After the incident involving Patient M.M. , Peti tioner

worked for Endosurg for an additional three days.

10 . For the year 2003 , Petitioner Connolly and Joseph F.

Connolly filed a Joint Form 1040 U . S . Individual Income Tax

Return , with a Schedule C , representing profit or loss from a

business naming D onna C. Connolly as a proprietor , " anesthesia

provider , " reflecting income and expenses with a net profit of

$34,506.00.

1 1 . In 2003 , Nurse Connolly 's proprietorship carried

business insurance through Bloom Insurance Services with a

policy written by Ev a nston Insurance Company.

1 2 . Nature Coast paid Nurse Connolly for services provided

at Endosurg . No insurance coverage was provided to Nurse

Connolly from Nature Coast for the work done at Endosurg , nor

was she entitled to any form of benefits from Na ture Coast for

that work. Nurse Connolly gave Nature Coast an invoice

reflecting the services provided at Endosurg for which she

requested payment and was paid.

1 3 . Nurs e Connolly had other arrangements with agencies in

2003 to place her. Those agenci es were Nation Wide A nesthesia

Services and MDA Associates. Arrangements with the latter two

agencies were under terms set forth in written contacts.

1 4 . At all times relevant Nurse Connolly did not advertise

her services as a sole proprietor. She did pr ovide business

cards that set forth her address, telephone number , and e - mail.

1 5 . When performing her duties as a n anesthesia provider

in outlying locations, Nurse Connolly deducts meals, hotel

expenses and her malpractice insurance for purposes of her

income tax return.

1 6 . During the relevant period in time , Nurse Connolly had

no other employees working for her. Her net worth was not more

than two million dollars.

§ 57 .111(4)(b)1 . , Fla. Stat. 2005

"i temized affidavit "

1 7 . To support Nur se Connolly 's application for attorney 's

fees and costs , an affidavit has been provided by her counsel

setting forth a claim for 10 5.1 hours of work performed by th e

law firm at a charge of $350. 00 per hour for legal services ,

with an additional $45.08 i n costs for federal express expe nses

in relation to her defense against the Administrative Complaint

in DOAH Case No. 05 - 3268PL/DOH Case No. 2004 - 34970. The

a ffidavit was prepared on May 23, 2006 . Counsel for Petitioner

Connolly also provided an itemized s tatement of work done

between June 7, 2005 , and February 5, 2006 , as to the dates and

nature of the services and time necessary to perform the

incremental services totaling 105.2 hours, a discrepancy

compared to the affidavit of .1 hours.

1 8 . In further support of the request for attorney's fees

and costs , the application is accompanied by an affidavit

provided by Paul C. Perkins, Jr., Esquire, as to the

reasonableness of the fees requested for 105.1 hours of time

expended . He comment s , that recognizing the complexity and

novelty of the issues in the case , an hourly rate for attorney

work performed would range from $250 to $400 an hour. Attorney

Perkins , like Petitioner Connolly 's counsel , practices law in

Florida .

19. The affidavit by attorney Perk ins refers to his

admission to the Florida Bar and license to practice in the

State of Florida for a period of 14 years. The affidavit was

executed before a notary in Seminole County, Florida . In

particular, he speaks to the complexity of the underlying case

involving the administrative prosecution of Nurse Connolly , as a

matter where expert testimony in the areas of pharmacology,

anesthesiology, and cardio - pulmonary health were considered. In

addition , the underlying case involved medical ethics and

ext ensive research, according to a ttorney Perkins .

20. On September 20, 2006 , Nurse Connolly 's attorney in

this case, Damon A. Chase, Esquire, filed a supplemental

affidavit as to attorney's fees and costs in the matter, asking

that he be reimbursed for his fees at a rate of $350.00 per

hour. Attached to the affidavit was a rendition of the services

provided in the present case from July 12, 2006 , through

September 5, 2006 , totaling 24.4 hours. A second affidavit by

a ttorney Perkins has not been filed to su pport the additional

24.4 hours.

§ 57.111(4)(c), Fla. Stat. (2005)

"o pposition a ffidavit"

21. Respondent in this cause filed a counter - affidavit in

opposition to Petitioner 's attorney's affidavit for fees and

costs. The counter - affidavit was pro vided by Edwin A. Bayo,

Esquire, who practices in Leon County, Florida , where he has

practiced for the last 22 years. The majority of his practice

was in the Office of the Attorney General, State of Florida.

Attorney Bayo served as Board counsel for prof essional

regulatory boards to include the Boards of Ph armacy, Dentistry,

Osteopathic m edicine, Chiropractic med icine, Veterinary medicine

and P rofessional E ngineers. His law practice has involved

significant administrative law litigation. In response to the

original request for reimbursement of attorney's fees in

relation to the 105.1 hours, his opinion is that the appropriate

hourly rate for the type of work performed in the case , as

reviewed by Attorney Bayo , would be from $200 to $325 an hour,

with the higher rate of charge being associated with counsel who

has had more experience in administrative litigation, that is to

say in excess of 15 years. Attorney Bayo contrasts that number

of years with the amount of time that counsel for Nurse Connolly

has b een in practice in Florida , which a ttorney Bayo represents

as being three years. Ultimately a ttorney Bayo offers the

opinion that the rate of reimbursement for A ttorney Chase should

not exceed $225 per hour.

§ 57.111(4)(d)1 . , Fla. Stat. (200 5 )

" n omina l p arty"

22 . When the Department of Health undertook its

prosecution directed to Donna M. Cameron Connolly, R.N.,

C.R.N.A., it was not acting as a nominal party.

§ 57.11(3)(e), Fla. Stat. (2005)

"substantially justified"

23. Exhibit "B" to Respondent ' s Notice of Filing of

Additional D ocuments in the present case, as filed August 25,

2006 , is constituted of the investigative report by the

Department of Health, with exhibits . I t include s patient

records and expert opinions in DOH Case No. 2004 - 34970, al l the

material being mailed to the Probable Cause Panel which d ecided

in favor of Probable Cause to bring the Administrative Complaint

in the case. Exhibit "B" also contains the written response to

the investigation provided by Nurse Connolly . The inform ation

available to the Probable Cause Panel continues in this

discussion.

24 . On April 8, 2003 , a confidential code 15 report was

received by the H ealth F acility R egulation Ho spital and

O utpatient Services, within the State of Florida, Agency for

Health Care Administration . In conte n t , it pertained to

Patient M.M. The report was made in compliance with Section

395.0197(8), Florida Statutes ( 2002 ). The report concerned the

incident on March 13, 2003 , which forms the basis of the

administrative prosecuti on that underlies the present case. The

Code 15 report was acknowledged by an Investigation Specialist

with the Department of Health in a letter to the reporter dated

July 1, 2003 . Beyond that date , the Department of Health

undertook its investigation in to the matter concerning

Patient M.M. and her treatment on March 13, 2003 . After the

investigation commenced , a Uniform Complaint Form was executed

by the Investigation Specialist for the Department of Health , in

a setting were Donna Connolly was named as the Respondent in

relation to the March 13, 2003 , incident. Generally , it

summarized the events of that day and the withdrawal of life

support from Patient M.M. on March 16, 2003 , followed by the

patient 's death on March 17, 2003 . The focus of the

inves tigation was on a possible violation of Section

464.018(1)(h), Florida Statutes ( 2002 ), and Florida

Administrative Code Rule 64B9 - 8.005(2)(i).

2 5 . In pursuing the investigation , the Department of

Health made contact through its investigator w i t h an offi cial at

Endosurg in Lady Lake, Florida . The in vestigation was

facilitated by a subpoena issued October 8, 2003 , calling for

the release from Endosurg of medical information about

Patient M.M. and the care received at Endosurg . The subpoena

duces tecum th at was sent to Endosurg on October 8, 2003 , asked

for the outpatient center to provide a copy of the medical

records for the March 13, 2003 , admission in relation to

Patient M.M.

26 . Among the items that Endosurg gave the Department of

Health concern ing the care received by Patient M.M. on March 13,

2003 , were the nursing assessment s , pre - op and post - op

information , the end oscopy report for the procedure being

performed on the patient, the a nesthesia r ecord, the endoscopy

procedure record, the past me dical history of the patient,

information concerning the provision of anesthesia in advance of

its provision, a pre - operative evaluation questionnaire

including the history of present illness es, physical examination

and a cardio - pulmonary resuscitation rep ort form in relation to

the CPR team who responded to the patient's arrest , which the

report form refers to as occurring around 7:45 a.m. on March 13,

2003 . I t describes the CPR team responding to the incident as

Nurse Connolly ; Nurse Mayhew, who was a re gistered nurse ; and

the attending physician , who performed the colonoscopy .

2 7 . The Department of Health also issued a subpoena duces

tecum to Lake Sumter Emergency Medical Services of Mt. Dora,

Florida , who responded to the incident, providing care and

transport for Patient M.M. on March 13, 2003 . In response the

Medical Services Agency provided transport information in

relation to Patient M.M. , who had suffered the cardiac arrest

and was taken to the Villages Regional Hospital (Villages

Hospital) . A copy of a report reflecting the intubation and

treatment provided by the agency to the patient was also given

to the Department of Health , with a code summary critical event

record.

2 8 . The patient was taken to the Villages Hospital for

emergency treatm ent. T he Department of Health issued a subpoena

duces tecum to the hospital . The response to the subpoena

included a written record of the diagnosis, including cardiac

arrest , anoxic brain damage. Information from the Villages

Hospital included physicia ns ' order s , history and physical,

laboratory studies, diagnostic studies, etc. The clinical

indication at the time the patient was cared for in the Villages

Regional Hospital was that the status was post - cardiac arrest,

altered mental status. On that sam e date , March 13, 2003, the

patient was trans ferred from the Villages Hospital to Lake

Regional Medical Center (LRMC ) in Leesburg, Florida .

29 . LR MC also provided records related to Patient M.M.

3 0 . The information received from LRMC was pursuant to a

subpoena duces tecum . The death summary provided by LRMC , where

Patient M.M. expired on March 17, 2003 , referred to a discharge

diagnosis as , severe anoxic encephalopat hy following cardio -

respiratory seizure , and cardiac arrest secondary to ventricular

fibrillation. The patient expired when life support was

withdrawn. L RMC patient information included physician's

orders, patient progress notes, medication administration

record, etc.

31 . On March 21, 2003 , a n associate medical examiner for

the Distri ct Five Medical Examiner's office located in Leesburg,

Florida , determined that the cause of Patient M.M. 's death was

hypertensive and arteri o s clerotic heart disease.

32. On October 20, 200 4, a medical malpractice

investigator for the Department of Healt h wrote to Donna

Connolly, A.R.N .P., advising her of Complaint N o. 2004 - 3490.

That correspondence referred to an enclosed document that had

been determined sufficient for investigation pursuant to Section

456.073, Florida Statutes ( 2004 ) , and extended an invitation to

Nurse Connolly to file a written response or to call in and

schedule an interview within 20 days of receiving the letter.

Nurse Connolly was reminded that any response "will be made a

part of the file and will be considered by the Department and

the Probable Cause Panel in determining whether a formal

Administrative Complaint should be filed in the matter." Nurse

Connolly was also advised that she was not required to answer

any questions or give statements and that she could be

represented b y counsel.

33 . On November 12, 2004, as received by the Department of

Health on November 15, 2004 , Nurse Connolly responded in writing

to the ongoing investigation addressing the documents involved

in the investigation . S he provided an explanation of her

recollection of the events on March 13, 2003 , related to the

care she provided Patient M.M. , disavowing any unprofessional

conduct on her part.

34 . On June 1, 2005 , an Order of Emergency Restriction of

the l icense of Donna M. Cameron Connolly, A.R. N.P., C.R.N.A, was

entered by the Secretary of the Department of Health . The

significance here , is that C. Erwin Velbis , C.R.N.A., A.R.N.P.,

performed a review of what was referred to at that time as Case

No. 2004 - 3490 . O n February 4, 2005 , utilizing a n outline

provided by the Department of Health , he performed the medical

revie w related to the overview of the March 13, 2003 , case

involving Patient M.M. , the colonoscopy and the eventual death

of the patient on March 17, 2003 . In response to the question

in the form , Question 3, which says :

The applicable standard of care, step by

step in this case is

He replied:

a. Preanesthesia Care, Basic Standards for

b. Basic Anesthetic Monitoring, Standards

for

c. Safe use of Propofol

d. Appropriate level of sedation (Monitored

Anesthesia Care vs. Conscious Sedation vs.

Deep Sedation/Analgesia vs. General

Anesthesia

e. Postanesthesia Care, Basic Standards for

f. Documentation of Anesthesia Care

Nurse Velbis indicated that Nurse Connolly , in providing care to

Patient M.M. on March 13, 2003 , failed to meet the standard of

care set out in the questionnaire by :

5.d. Subject's PACU arrival vital signs do

not reflect what was first documented by

nursing staff which revealed hypotension and

bradycardia that was treated with r omazicon

and t rendelenburg positioning.

5.e. S ubject left an unstable patient upon

arrival to PACU

5. f . no documented ECG rhythm strips

support what dysrhythmia patient was having

that required ACLS.

Under the respo nse to qu estion n umber 6 in the form , Nurse

Velbis opines that Nurse Connolly should have done the

following:

a. Stayed with patient upon arrival in the

PACU after a bp 74/42 and p40 was assessed

b. Initiated defibrillation more quickly

once the airway was sec ured (10 minutes had

expired before the Fire and Rescue

Paramedics defibrillated the patient).

c. Provided clear ECG documentation.

35. In this review , Nurse Velbis indicated items that

might increase or lessen Nurse Connolly 's culpability to the

e ffect :

A. gastroenterologist assumed "captain of

the ship" regarding responsibility and

accountability in the an es thesia care team

mod el

B. no supplemental oxygen was applied t o

the patient at PACU nor were [sic] there

documentation of the SpO2

C. dose of Romazicon given by PACU nursing

staff is unknown from the records. Was the

dosage appropriate for the level of

sedation?

D. Nursing staff should have called the

subject if Ramazicon was necessary to awaken

a previously conversant patient

E. What is the patient to staff ratio in

the combined holding area in PACU?

Depositions illustrate providers physically

too far away from the patient in this case

(this is an obese patient with a BMI of 35,

no supplemental oxygen , and in t rendelenburg

posi tion). Patients can re sedate and become

apneic without continual stimulation.

3 6 . Nurse Velbis was also asked to comment on the

E mergency R estriction O rder in draft form , which took into

account his expert opinion that had been rendered in his writt en

review as a means to make certain that the E mergency R estriction

O rder accurately reflected his expert opinion. Th ere was also a

reference in April 4, 2005 , correspondence to Nurse Velbis

concerning the addition of a paragraph 19 to the E mergency

R estr iction O rder describing Nurse Connolly 's failure to utilize

the bag - valve mask immediately as a failure to meet applicable

standards of care. This correspondence also describes some

discrepancy between the author and Nurse Velbis concerning

information th at he had reflected in his written review about

vital signs associated with Patient M.M. when the patient first

arrived at the PACU at Endosurg . On April 21, 2005 , Nurse

Velbis responded in writing to the April 4, 2005 ,

correspondence , giving advice to om it paragraph 19c to the

E mergency R estriction O rder for reasons stated in the written

response noting in the end that Nurse Connolly "remains

just fully [sic] culpable for the underlying cause, primarily

hypoxia, of M.M.'s PEA rhythm."

37. Nurse Velbis , who had been called upon to review

materials associated with the investigation into Nurse

Connolly 's conduct on March 13, 2003, in treating Patient M.M. ,

had access to the Department of Health 's investigative report

that includ ed medical records.

38 . Nurse Velbis ' assessment of the circumstance s in

relation to care of Patient M.M. received on March 13, 2003 , at

Endosurg , contrasts with the January 11, 2005 , memorandum from

Kay Frank, R.N., B.S.N., a nurse consultant whose recommendation

was "close comp laint against D.C. (Donna Connolly ) no violation.

Consider further investigation of recovery and resuscitation of

this client."

39 . The investigative report form by the Department of

Health that addressed the complaint that was made October 15,

2004 , w as completed when approved on December 30, 2004 . By its

t able of contents , it refers to written records received from

the various sources under subpoena duces tecum to Endosurg , Lake

Sumter Emergency Medical Services, Villages Hospital , and LRMC ,

with a s ummary of the impression gained from a review of these

materials. The investigative report also includes summaries of

interviews conducted with the Endosurg Risk Manager Consultant ;

the Nurse Administrator at Endosurg ; the Risk Manager of the

Villages Hos pital ; Maureen Mayhew, R.N. at Endosurg , who was in

the PACU when Patient M.M. was transferred to that unit from the

procedure room ; and the Risk Manager for L RMC, as well as a

summary of Nurse Connolly 's response to the investigation.

40 . On June 20, 2 005 , a Probable Cause meeting was

convened in which panel members Maria Seitz and Jeanne Stark

participated. As the transcript of that meeting establishes ,

the panel members confirmed that they had had sufficient time to

review the materials that have bee n described in aid of their

deliberations. A mong the cases on the agenda was the subject

case involving Donna Connelly. Attorney Judy Law from the

Department of Health , who participated in the panel discussion ,

noted that the panel members had been provi ded with complete

case files including the investigative report s , attached

exhibits , all patient medical records , and any expert opinion ,

as well as any material provided by a licensee to respond to the

Department investigation. It was indicated that the panel

members had been provided a draft of the R ecommended

Administrative Complaint in the Connolly case.

41. Attorney LeeAnn Gustafson for the Board of Nursing ,

who participated in the meeting for probable cause , explained to

the Probable Cause Panel m embers, that if they had questions

concerning interpretation or the application of any provision

within Chapters 456 and 464, Florida Statutes , they should

direct them to her, as well as any of the specifics concerning

the cases that were on the agenda at that time, to include the

case involving Nurse Connolly .

4 2 . There is a reference in the probable cause transcript

to a scrivener's error that needed clarification in the

Administrative Complaint related to Nurse Connolly and a need to

correct numbers in the paragraphs to the Administrative

Complaint without changing the underlying facts. The panel

members agreed to these corrections.

4 3. During the Probable Cause Panel meeting , a Mr. M onte

gave a case overview involving the March 13, 2003 , inciden t

related to Patient M.M. and commented that the basis for the

case was a failure to meet minimum standards of acceptable and

prevailing nursing practice: by leaving an unstable patient ; by

failing to verify the patient's vital signs upon admission; by

fa iling to stay with the patient long enough to ensure that the

patient was stable; by disregarding the patient's unstable vital

signs ; by failing to provide oxygen via bag, valve or mask, or

through in c ubation (intubation) immediately; by failing to

ensure the proper equipment for in c ubation (intubation) was

readily available; by failing to utilize in c ubation (intubation)

equipment in a timely fashion , as necessary to restore breathing

in an emergency ; and by choosing to use mouth to mouth

resuscitation as a first intervention. With this explanation ,

Ms. Sietz moved to fin d probable cause , which was seconded by

Ms. Starke. There ensued subsequent discussion about the case

between the panel members and a possible disposition of the case

by way of discipline imposed on Nurse Connolly .

§ 57.111(4)(a), Fla. Stat. (2005)

"s pecial c ircumstances "

44 . No evidence was presented by Respondent in this case

to show that special circumstances exist which would make the

award of attorney ' s fees and costs unjust.

C ONCLUSIONS OF LAW

45 . The Division of Administrative Hea rings has

jurisdiction over the su bject matter and the parties in this

case in accordance with Sections 57.111 and 120.57(1), Florida

Statutes (200 5 ) .

46 . This case arises under the "Florida Eq ual Access to

Justice Act." § 57.111(1), Fla. Stat. ( 2005 ) . By the action ,

Petitioner Connolly seeks to recover "attorney's fees and costs"

as defined in Section 57.111(3)(a), Florida Statutes ( 2005 )

which states:

(3) As used in this section:

(a) T he term "attorney's fees and costs"

means the reasonable and necessary

attorney's fees and costs incurred for all

preparations, motions, hearings, trials, and

appeals in a proceeding.

47 . To begin this case Petitioner Connolly had to comply

with the pr ocedural expectations in Section 57.111(4)(b)1 . and

2 . , Florida Statutes ( 2005 ):

1. To apply for an award under this

section, the attorney for the prevailing

small business party must submit an itemized

affidavit to the court which first conducted

the adversarial proceeding in the underlying

action, or to the Division of Administrative

Hearings which shall assign an

administrative law judge, in the case of a

proceeding pursuant to chapter 120, which

affidavit shall reveal the nature and extent

of the se rvices rendered by the attorney as

well as the costs incurred in preparations ,

motions, hearings, and appeal s in the

proceeding.

2. The application for an award of

attorney's fees must be made within 60 days

after the date that the small business part y

becomes a prevailing small business party.

48. The right to recover "attorney's fees and costs" is

premised upon the outcome of a ca se "initiated by a state

agency," a ccording to Section 57.111(3)(b), Florida Statutes ,

which states:

(3) As used in this section:

* * *

(b) The term "initiated by a state agency"

means that the state agency:

1. Filed the first pleading in any s t ate or

federal court in this state;

2. Filed a request for an administrative

hearing pursuant to chapter 120; or

3. Was required by law or rule to advise a

small business party of a clear point of

entry after some recognizable event in the

investigatory or other free - form proceeding

of the agency;

49. Th e t er m "state agency" in Section 57.11 1(3)(f),

Florida Statutes ( 2005 ) , relies on the definitional statement in

Section 120.52(1), Florida Statutes ( 2005 ) , for the term "state

agency." For this case the term "agency" is found at Section

120.52(1)(b)1 . and 2 . , Florida Statutes ( 2005 ), where it states:

(1) Agency "means:"

(b) Each:

1 . . . . state department and each

departmental unit described in s. 20.04.

* * *

3 . Board.

50 . A "prevailing small business party" is the only entity

that would be entitled to colle ct "attorney's fees and costs"

under the Florida Equal Access to Justice Act. A small business

party prevails , according to Section 57.111(3)(c), Florida

Statutes ( 2005 ):

(c) . . . when:

1. A final judgment or order has been

entered in favor of the sm all business party

and such judgment or order has not been

reversed on appeal or the time for seeking

judicial review of the judgment or order has

expired;

2. A settlement has been obtained by the

small business party which is favorable to

the small bus iness party on the majority of

issues which such party raised during the

course of the proceeding; or

3. The state agency has sought a voluntary

dismissal of its complaint.

51 . As stated in Section 57.111(3)(d), Florida Statutes

( 2005 ):

(d) The t erm "small business party" means:

1.a. A sole proprietor of an unincorporated

business, including a professional practice,

whose principal office is in this state, who

is domiciled in this state, and whose

business or professional practice has, at

the time the action is initiated by a state

agency, nor more than 25 full - time employees

or a net worth of not more than $ 2 million,

including both personal and business

investmen ts; or

b. A partnership or corporation, including

a professional practice, wh ich has its

principal office in this state and has at

the time the action is initiated by a state

agency not more than 25 full - time employees

or a net worth of not more than $2 million;

or . . .

52 . To be awarded "attorney's fees and costs" in this

matt er , Petitioner Connolly must show that she was a prevailing

small business party in DOAH Case No. 05 - 3268PL related to the

Administrative Complaint in DOH Case No. 2004 - 34970 , initiated

by the Department of Health upon its investigation . T he proof

sustain ing the claim for "attorney's fees and costs" must be by

a preponderance of the evidence. See Departmen t of Professional

Regulation, Division of Real Estate, v. Toledo Realty, Inc. , 549

So. 2d 715 (Fla. 1st DCA 1989). According to that case , if the

burde n is met by Nurse Connolly , then the Department of Health

must establish whether it was substantially justified in

prosecuting the Administrative Complaint , again by the

preponderance of the evidence. The burden residing with

Respondent Department of Heal th is based upon Section

57.111(4)(a), Florida Statutes ( 2005 ) , which states:

Unless otherwise provided by law, an award

of attorney's fees and costs shall be made

to a prevailing small business party in any

adjudicatory proceeding or administrative

proc eeding pursuant to cha pter 120 initiated

by a state agency, unless the actions of the

agency were substantially justified or

special circumstances exist which would make

the award unjust.

53 . As can be seen , the Department of Health is also given

the opp ortunity to demonstrate special circumstances making the

award of attorney's fees and costs an unjust decision.

5 4. Consiste nt with the expectations found i n the

statutory provisions , Petitioner Connolly as the applicant for

attorney's fees and costs ha d a decision in her favor in the

case before the State of Florida Board of Nursing, Department of

Health, Petitioner v. Donna M. Cameron Connolly, R.N., C.R.N.A. ,

Respondent , DOH Case No. 2004 - 3790/DOAH Case No. 05 - 3268PL , in a

F inal O rder entered February 22, 2006 . From the record

presented here no appeal was taken by the Department of Health

within 30 days of the final order. § 57.111(3)(c)1 . and

120.68(2)(a), Fla. Stat. ( 2005 ). On May 23, 2006, the

application for attorney's fees and costs was filed , within 60

days of the date the decision was rendered in favor of

Petitioner Connolly , resulting from the administrative

prosecution. That application met with opposition in accordance

with Section 57.111(4)(c), Florida Statutes ( 2005 ), to include

the prov ision of a counter - affidavit opposing the hourly rate

for attorney's fees and a motion to dismiss the application as

amended twice.

55 . If Petitioner Connolly is to receive an award of

attorney's fees and costs in relation to the action initiated in

the Administrative Complaint pertaining to D OH Case No. 2004 -

34970/DOAH Case No. 05 - 3268PL, the Administrative Complaint

case, it shall not exceed $50,000.00. § 57.111(4)(d)2 . , Florida

Statutes ( 2005 ).

56. Petitioner Connolly has applied for attorney's fe es ,

and the statute to support that claim a b r o gates common law .

Therefore, Section 57.111, Florida Statutes ( 2005 ) , is strictly

construed. See Sarkis v. Alls tate Ins. Co. , 863 So. 2d 210

(Fla. 2003).

5 7. Petitioner Connolly was the winner in D OH Case No.

2004 - 34970/DOAH Case No. 05 - 3268PL , an action initiated by the

Department of Health , a state agency . S he was not the

prevailing small business party within th e meaning of Section

57.111(3)(d)1 a, Florida Statutes ( 2005 ) , as she has claimed.

She did no t meet the definition of a sole proprietor of an

unincorporated business , to include a professional practice

whose principal office is in Florida . Petitioner Connolly works

upon an assignment basis through various placement agencies who

make arrangements with treatment facilities needing services

within her specialty, the provision of anesthesia. She has no

princip a l office in Florida . She has no office at all,

notwithstanding that she is personally domiciled in the state .

A t the time the action was ini tiated against her , she did not

have other employees and did not have a net worth that exceeded

$2 million dollars of either personal or business investments.

The Administrative Complaint in the underlying case was filed

against Petitioner Connolly indivi dually and not against a sole

proprietorship, even if it were decid ed that a sole

proprietorship existed, a conclusion not reached . T herefore,

there is no opportunity for relief that would be afforded a

small business party under Section 57.111, Florida S tatutes

( 2005 ). See Daniels v. Florida Dep ar t ment of Health , 898 So. 2d

61 (Fla. 2005 ); Daniels v. State Department of Health , 868

So. 2d 551 (Fla. 4th DCA 2004) and Florida Real Estate

Commission v. Shealy , 647 So. 2d 151 (Fla. 1st DCA 1994). It is

sign ificant that the Florida Supreme Court decided that Daniels ,

as an individual who had been charged in an Administrative

Complaint with a violation of Section 467.203(1)(f), Florida

Statutes ( 2001 ) , could not proceed with her claim for attorney's

fees and c osts pursuant to Section 57.111(3)(1)(b), Florida

Statutes (2002), which was reserved for applicants such as her

corporation South Beach Maternity. By analogy , Petitioner

Connolly was charged under an Administrative Complaint for a

violation associated wi th Chapter 464, Florida Statutes , as an

individual, not as a sole proprietor of an unincorporated

business as d efined in Section 57.111(3)(d)1 a . , Florida Statutes

( 2005 ). Petitioner Connolly is precluded in her opportunities

to recover attorney's fees and costs in a manner not dissimilar

to Midwife Daniels.

5 8. Since Daniels was decided by the Florida Supreme

Court, Section 57.111(3), Florida Statutes ( 2005 ), has been

amended by Chapter 2006 - 82, Laws of Florida, to include new

language describing a " small bu s iness party " at Subsection

57. 111(3)( c ) that addr es ses :

An individual whose net worth did not exceed

$2 million at the time the action is

initiated by a state agency when the action

is brought against the individual's license

to engage in the practice or operation of a

business, profession , or trade.

T hat amendment is substantive in nature , and it post - dates the

present action brought under a prior version of the statute

where the attorney's fees and costs would not be authorized. As

such , the revi sed statute may not be applied retroactively to

the application for attorney's fees and costs in relation to

matters transpiring before the effective date of the recent

amendment. See Mullins v. John Kennelly and Patricia Kennelly ,

847 So. 2d 1151 (Fla. 5 th DCA 2003). C hapter 2006 - 82, Laws of

Florida, became effective June 7, 2006 , when approved by the

Governor.

5 9. Should it have been concluded that Petitioner Connolly

was a "prevailing small business party," which conclusion has

not been reached, the itemization of services performed by her

counsel in the original filing and the supplement to that filing

has not been contested as to its details. The $350 - hourly rate

charged is supported by an affidavit provided by Paul C.

Perkins, Jr., Esquire, conce rning the rate for attorney work

performed in the area where Petitioner 's counsel practices. The

counter - affidavit by Edwin Bayo, Esquire, suggesting a $225 - per

hour rate is for another area in the state. As a consequence ,

the opinion for a ttorney Perkin s is accepted and the $350 - hourly

rate is appropriate. The total charges for fees and costs do

not exceed the $50,000 cap set forth in Section 57.111(4)(d)2 . ,

Florida Statutes ( 2005 ).

6 0. Had Petitioner Connolly shown that she was a

prevailing small bu siness party, it would not matter , in that

the Department of Health has shown that it was substantially

justified in its decision to proceed with the prosecution at the

time it initiated the disciplinary action. To decide the issue

of substantial justific ation, resort is made to information

before the Probable Cause Panel at the time i t found p robable

cause. Resort is not made to events that occurred beyond that

point. See Department of Health, Board of Physical Therapy

Practice v. Cralle , 852 So. 2d 930 (Fla. 1st DCA 2003 ); Fish v.

Department of Health, Board of Dentistry , 825 So. 2d 421 (Fla.

4th DCA 200 2); and Kibler v. D epartment of Prof'l Regulation ,

418 So. 2d 1081 (Fla. 4th DCA 1982). In carrying out its

responsibilities , the Department of Health in relation to

Petitioner Connolly investigated the complaint concerning the

March 13, 2003 , incident with Patient M.M. and considered the

response made by the subject of that complaint , Petitioner

Connolly , all in accordance with Section 456.073(1), Flori da

Statutes (2004) . The investigative staff wrote a report

concerning investigative findings that was made available to the

Probable Cause Panel . § 456.073(2), Fla. Stat. (2004)

6 1. On June 20, 2005 , a Probable Cause Panel consisting of

two members wa s convened , and in that meeting confirmed that

they had had sufficient time to review the materials submitted

for their deliberations. Counsel , in attendance for the

Department of Health there to advise the Probable Cause Panel ,

noted the information that had been provided to the Panel in

discussion at the meeting to include the information from the

investigative staff by way of the investigative report , attached

exhibits and patient medical records, expert opinion s , and

materials from the licensee, Petiti oner Connolly . Also provided

was a draft of the Recommended Administrative Complaint . There

ensued some discussion between an attendee, a Mr. Monte,

concerning the Administrative Complaint related to Petitioner

Connolly describing asp ects of the case as to facts review ed by

that participant and suggested to the P anel members that the

subject, Petitioner Connolly , failed to meet minimal standards

of acceptable and prevailing nursing practice . Based upon those

facts it was requested that the Probable Cause Panel authorize

the filing of an Administrative Complaint . One panel member

moved to find probable cause and that motion was seconded by the

second member.

6 2. The actions by the Probable Cause Panel , constituted

of two members, were conducted in accordance with Section

456.073(4), Florida Statutes ( 2005 ) .

6 3. In examining the choice by the Probable Cause Panel to

proceed with the prosecution , the test applied is one of

reasonableness. More specifically in , Fish , 825 So. 2d at 423

the court sta tes:

I n ass essing the reasonableness of

government action, for the Department to be

'substantially justified' in initiating

disciplinary action against a licensee, it

'must have a solid though not necessarily

correct basis in fact and law for the

positio n it took in the action' McDon a l d v.

Schweiker , 726 F.2d 311, 316 ( 7th Cir.

1 9 8 3) . To sustain a p robable c ause

determination there must be some evidence

considered by the p anel that would

reasonably indicate that the violation had

indeed occurred. See Ki bler , 418 So. 2d at

1084. The evidence, however, need not be as

compelling as that which must be presented

at the formal administrative hearing on the

charges to support a finding of guilt a n d

the imposition of sanction s . See Dep't of

Prof'l Regulation, Div. of Real Estate, v.

Toledo Realty, Inc. , 549 So. 2d 715 (Fla.

1st DCA 1989).

6 4. In the present case , there was a solid enough basis in

fact and law for the position taken by the Department of Health

in pursuing that case against Petitioner Connoll y .

6 5. The foundation for the decision to proceed against

Petitioner Connolly , based upon a determination of probable

cause , was not unsteady when considering facts and law such as

to undermine the justification for the choice to proceed. See

Departm ent of Health and Rehabilitative Services v. S.G. , 613

So. 2d 1380 (Fla. 1st DCA 1993).

66 . The Department of Health had a working knowledge of

the applicable statutes under which it was proceeding. Nothing

in the record would indicate that the Probabl e Cause Panel was

without the necessary legal insight concerning Chapter 464,

Florida Statutes . See Helmy v. Department of Business and

Professional Regulation , 707 So. 2d 366 (Fla. 1st DCA 199 8 ) .

The working knowledge in the matter conc erning Nurse Conn olly ,

given the subject matter and the dialogue conducted before

determin ing probable cause to discipline Nurse Connolly was more

complete tha n that portrayed in the Helmy case excerpts taken

from the Probable Cause Panel transcript be for e the Board of

Vet erinary Medicine in the Helmy case. Thus , it is

distinguishable.

67. The role consulting experts played in the process

leading to a determination to find probable cause was integral

to the process but not controlling. The opinions of Nurse

Velbis tend ed to support the finding o f probable cause. The

recommendation by Nurse Frank did not. It was not irregular to

reject the opinion of Nurse Frank and accept that provided by

Nurse Velbis when voting to find probable cause. See Department

of Health v. La rry D. Thomas , 890 So. 2d 400 (Fla. 1st DCA

2004).

68 . To support her application and motion for attorney's

fees and costs , Petitioner Connolly cited to Section 57.041,

Florida Statutes ( 2005 ) , as authority. That provision states:

57.041 Costs; reco very from losing party. --

(1) The party recovering judgment shall

recover all his or her legal costs and

charges which shall be included in the

judgment; but this section does not apply to

executors of administrators in actions when

they are not liable f or costs.

(2) Costs may be collected by execution on

the judgment or order assessing costs.

That reference is not relevant to Petitioner Connolly 's claims.

Based u pon t he facts found and the conclusions of law

reached, it is

O RDER ED :

The application for attorney's fees and costs in

association with DOH 2004 - 34970/DOAH Case No. 05 - 3268PL is

denied.

DONE AND ORDE RED this 24th day of October , 200 6 , in

Tallahassee, Leon County, Florida.

S

___________________________________

CHARLES C . ADAMS

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

Di vision of Administrative Hearings

this 24th day of October , 200 6 .

ENDNOTE S

1/ The present case was originally filed as Department of

Health, Petitioner v. Donna M. Cameron Connelly, R.N., C.R.N.A,

Respondent , DOAH Case No. 05 - 3268PL/ DOH Case No. 2004 - 3 4970, a

case involving an administrative prosecution that forms the

basis for the present case. The style has been corrected to

reflect t he true status of the parties in the present action.

2/ Notwithstanding the order on official recognition , the

Dec ember 8, 2005 , R ecommended O rder and February 27, 2006 , F inal

O rder in DOAH Case No. 05 - 3268PL, and DOH Case No. 2004 - 34970,

respectively as maintained by the Clerk of the Division of

Administrative Hearings , are considered in this case.

COPIES FURNISH ED :

Katharine E. Price, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tal lahassee, Florida 32399 - 3265

Damon A. Chase, Esquire

Chase Law Offices, P.A.

250 International Parkway, Suite 250

Lake Mary, Florida 3 2746

Dan Coble, Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 1701

R. S. Power, Ag en cy Cl erk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 3239 9 - 1701

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review pro ceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency Clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.