07-004713 Pinellas County Emergency Medical Services, Office Of The Medical Director vs. Adam C. Baginski Status: Closed Recommended Order on Thursday, February 14, 2008.

Summary: Petitioner did not meet its burden of proof to support termination of Respondent`s EMT certification.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY EMERGENCY )

MEDICAL SERVICES, OFFICE OF THE )

MEDICAL DIRECTOR , )

)

Petitioner , )

)

vs. ) Case No. 07 - 4713

)

ADAM C. BAGINSKI , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 9, 2008, in St. Petersburg, Florida, before

Administrative Law Judge R. Bruce McKibben of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Desiree Demonbreun, Esquire

Dawn Siler - Nixon, Esquire

Ford and Harrison, LLP

101 East Kennedy Boulevard, Suite 900

Tampa, Florida 33602

For Respondent: Robert G. Walker, Jr., Esquire

Robert G. Walker, P.A.

1421 Court Street, Suite F

Clearwater, Florida 33756

STATEMENT OF THE ISSUE

The issue in this case is whether Petitione r wrongfully

revoked the Respondent's Pinellas County paramedic

certification.

PRELIMINARY STATEMENT

On September 25, 2007, the Pinellas County Emergency

Medical Services, Office of Medical Director (hereinafter,

"Director"), conducted an internal formal i nvestigation to

thoroughly investigate and document allegations of

unprofessional conduct charged against Respondent. As a result

of the investigation, the Director permanently revoked

Respondent's Pinellas County paramedic certification.

Respondent time ly filed a challenge to the revocation, and this

proceeding ensued.

At the final hearing held in this matter, the Director

offered Exhibits 1 through 17 into evidence; each was accepted

without objection. The Director called five witnesses: David

Lock, q uality assurance manager for Pinellas County Emergency

Medical Services; William Newcomb, the patient whose complaint

had initiated the investigation; Kristin Burns, an emergency

medical technician (EMT), who had been teamed with Respondent on

occasion; Vi ctoria Glenn, the education and training director

for Respondent's employer; and Dr. Laurie Romig, M.D., the

medical director. Respondent testified on his own behalf but

did not call any other witnesses. Respondent did not introduce

any documentary evid ence. The record was kept open for

Respondent to file a response to any information contained on

the audio tapes introduced (as Exhibits 1 and 2) during the

final hearing. No response was filed as of the date the

proposed recommended orders were due.

At the close of hearing, the parties advised that a

transcript of the final hearing would be ordered. The parties

were given ten days after filing of the transcript at DOAH to

submit proposed recommended orders. The Transcript was filed on

January 24, 2008. The Director and Respondent each timely filed

a Proposed Recommended Order, and they were duly - considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Director is responsible for, inter alia , providing

paramedic certifications i n Pinellas County.

2. Respondent, Adam C. Baginski, was duly - certified as a

paramedic by Pinellas County in February 2005. Respondent was

employed by Sun Star, n/k/a Paramedics Plus (hereinafter

referred to as "Sun Star") , and had filed an application th rough

his employer for certification by Pinellas County.

3. Respondent had first entered the general health care

field as a life guard; he then became an EMT in 1994. After

training received at the University of Toledo, Respondent became

a paramedic in 2 001. He held three positions in Ohio before

coming to Florida, where he became employed by Lee County.

After approximately nine months , he resigned his position with

Lee County and went to work with Sun Star.

4. The application process in Pinellas Count y to obtain

paramedic certification entails a training seminar and a

background check. The requisite background check is performed

and attested to by the employer. At the training seminar,

applicants are required to submit written responses to a two -

page questionnaire. The questionnaire contains the following

preface:

Please answer the following questions so

that we may gather the necessary data to

provide a positive, educational and stress -

free learning experience. All in formation

will be confidentia l.

At the end of the questionnaire, this statement is found:

By signing this release, I understand that

any falsification, incomplete or misleading

information contained on this application or

in any documents presented to obtain County

Certification ma y be grounds for immediate

suspension and/or revocation of may [sic]

County Certification.

5. The Director processed Respondent's application for

certification by first reviewing the questionnaire. On the

first page of the questionnaire, Respondent list ed all of his

work experience in Ohio, but did not list his Lee County

experience. He does not remember why he omitted that employment

history, but thinks it may have been due to lack of adequate

space on the line provided. 1 A cursory review of the

quest ionnaire would show that appropriate space is provided.

Notwithstanding the omission, the Director issued a paramedic

certification to Respondent. 2

6. Upon receipt of his certification, Respondent began

performing paramedic services for Pinellas County t hrough his

employer. He was generally partnered with one particular EMT

for ambulance runs, but sometimes had a different partner if

circumstances so dictated. ( E.g. , if his partner was ill or on

vacation , he may be temporarily assigned to another EMT. It was

generally the duty of the EMT to drive the ambulance and for the

paramedic to perform direct care to the patient.)

7. On July 11, 2007, Respondent was on duty with Kristin

Burns as his EMT for that shift. Respondent cannot remember why

his regular partner was not there on that day. 3 Respondent and

Burns were responding to an emergency call when they were

interrupted by dispatch and told to go to a different location.

The new location was a doctor's office located at 929 First

Avenue North in down town St. Petersburg.

8. Before arriving on the scene, Respondent and Burns

received telephone/radio reports indicating the fire department

was already on the scene. Fire department employees had

assessed the patient (William Newcomb) and determined him t o be

stable. As a result, the call was "downgraded" so that

Respondent and Burns could proceed to the scene without lights

or siren. A downgrade indicates the situation is no longer

critical.

9. Upon arrival, Respondent talked to a firefighter and

was t old that the patient believes he has had a seizure and

wants to go to the VA hospital. It was again confirmed that the

situation was not an emergency. The patient had walked to his

eye doctor's office because he was having vision impairment.

When the do ctor could not see him, the patient called 911 and

asked for an ambulance to take him to the hospital. There was

no distress noted by the firefighters or Respondent.

10. The patient came out of eye doctor's office building

and, using a walker, walked him self directly towards the waiting

ambulance. Respondent began to question the patient at that

time, attempting to assess his condition. All he was able to

ascertain was that the patient wished to go to the VA hospital.

The cot was taken out of the ambul ance, the patient was strapped

in, and the ambulance headed toward the VA hospital. 4

11. During the trip to the VA hospital, Respondent and the

patient were in the rear of the ambulance; Burns was driving.

Respondent was seated in the "CPR seat" which is the seat to the

right of the patient. There is a window between the driver

compartment and the back of the ambulance that allows some

visual contact between the driver and the paramedic. Burns did

not actually see Respondent provide any care to the pati ent (but

it is unclear how well she could have seen into the rear of the

vehicle due to its configuration).

12. Newcomb does not remember what care was rendered to

him during the trip to the hospital. He believes his pulse and

temperature may have been t aken; his oxygen level was taken. He

does n o t specifically remember what else was done. He cannot

remember who helped him into the ambulance or much else about

the trip. He does maintain that Respondent talked to him a lot

about Newcomb 's not needing th e ambulance, but remembers little

other than that. Newcomb signed the patient care report (twice)

acknowledging Sun Star's billing practices and receipt of - - or

offer of - - a Notice of Privacy Rights.

13. The patient care report filled out by Respondent to

officially record the Newcomb case indicates Newcomb's vital

signs were taken three times in the ambulance trip. In

addition, a visual check was done to track any changes in the

patient's eyesight. Respondent noted that Newcomb had no facial

droops, he w as speaking clearly, and he was using purposeful

movements of his extremities. Each of these is a visual means

of ascertaining a hostile patient's condition. Newcomb doesn't

remember the trip well, and Burns did not see Respondent taking

vital signs, but Respondent maintains he took the vital signs ,

and they are recorded on the patient care report. There is no

clear evidence as to whether that happened or not.

14. The c onversations between Respondent and Newcomb were

only partially overheard by Burns. She was driving an ambulance

with a diesel engine in mid - day traffic. The window between the

cab of the ambulance and the back was not open. There was no

radio communication between Burns and Respondent during the ride

to the VA hospital.

15. Burns coul d maintain some partial visual contact with

Respondent during the ride. She could see through the window by

turning her head around or she could glance in the rear view

mirror. She remembers seeing Respondent sitting in the CPR seat

at the patient's head . Respondent remembers sitting in the CPR

seat at the patient's side. Newcomb remembers Respondent

sitting at his right side. Whether Burns was able to see

substantially all of Respondent's actions was not well

established in the record.

16. When the a mbulance reached the VA hospital, Newcomb

walked under his own power to the triage area in the emergency

room. Respondent walked in front of Newcomb, Burns walked

behind. Whether Newcomb walked voluntarily or because

Respondent told him to do so is not c lear. Burns testified that

Respondent told the patient to walk; the patient testified that

he was more or less able to get out of the ambulance on his own

and walk; and Respondent testified that the patient moved out of

the cot on his own accord. What ac tually transpired is unclear,

but Newcomb expressed several times that EMT Burns was attentive

to him. There is no evidence that he asked Burns for a

wheelchair or other assistance.

17. When the ambulance arrived at the hospital, Newcomb

was reported to be stable with no apparent distress. He ended

up remaining at the hospital for about three hours, after which

he walked out on his own power (using his walker), caught a

taxi, and went home.

18. Back at the doctor's office, Newcomb had advised

either the firefighters or Respondent that he (Newcomb) was HIV

positive. Newcomb is extremely emotional and sensitive about

his condition. It appears he drew conclusions about

Respondent's feelings concerning the condition even though it

was not discussed in any detail. Respondent must deal with HIV

positive and AIDS patients regularly in the course of his work;

it is unlikely this particular situation was significantly

repulsive to him.

19. The dialogue between Respondent and Newcomb during the

ride to the hosp ital was sometimes loud, sometimes heated , and

not necessarily friendly. Burns heard some words exchanged

concerning whether the ambulance was necessary. Respondent

remembers the patient as uncooperative; Newcomb's recollection

is that Respondent was rud e. There is insufficient evidence to

ascertain anything other than that Respondent and Newcomb were

not on amicable terms as patient and caregiver.

20. Respondent's demeanor and "bedside manner" were

considered relevant by the Director in making a decisi on to

revoke the paramedic certification. Past allegations against

Respondent were discussed but none of them were founded ; thus ,

they have no weight in this proceeding. Respondent had,

however, been counseled by his employer regarding his relations

with patients. The counseling came about as a result of

complaints by patients, family members, and other caregivers.

Sun Star also disciplined Respondent based on the Newcomb

complaint, denying him a full week's worth of work shifts. The

basis of the disci pline was that Respondent had allegedly

treated Newcomb unkindly because of the fact that Newcomb was

HIV positive.

21. It is clear from Respondent's demeanor in the final

hearing that he may not be a "people person." However, he is

very knowledgeable ab out his work and possesses all the

necessary medical skills. There was no evidence to support the

allegation that he treated Newcomb unprofessionally due to

Newcomb's HIV status.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdi ction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2007).

23. Pursuant to Section 401.265, Florida Statutes (2007) ,

a medical director is responsible for supervising and monitoring

emergency medical technicians and paramedics. Subsection (2)

states:

Each medical director shall establish a

quality assurance committee to provide for

quality assurance review of all emergency

medical technicians and paramedics operating

under his or her supervision. If the

medical director has reasonable belief that

conduct by an emergency medical technician

or paramedic may constitute one or more

grounds for discipline as provided by this

part, he or she shall document facts and

other i nformation related to the alleged

violation. The medical director shall

report to the department any emergency

medical technician or paramedic whom the

medical director reasonably believes to have

acted in a manner which might constitute

grounds for disci plinary action. Such a

report of disciplinary concern must include

a statement and documentation of the

specific acts of the disciplinary concern.

Within 7 days after receipt of such a

report, the department shall provide the

emergency medical technician or paramedic a

copy of the report of the disciplinary

concern and documentation of the specific

acts related to the disciplinary concern.

If the department determines that the report

is insufficient for disciplinary action

against the emergency medical t echnician or

paramedic pursuant to s. 401.411 the report

shall be expunged from the record of the

emergency medical technician or paramedic.

24. The Rules and Regulations of the Pinellas County

Emergency Medical Services Systems (the "Rules") includes th e

following pertinent sections:

V. County Certification of Clinical

Personnel

A. Extension of Clinical Privileges

1. The Medical Director extends clinical

privileges for individuals to participate in

patient care as a part of the Pinellas

County EMS S ystem through issuance of County

certification. These clinical privileges

may be extended to individual, EMTs,

paramedics, emergency medical dispatchers,

critical care transport nurses, critical

care transport paramedics, medical officers,

and EMS physici ans, as well as to wheelchair

transport drivers. Eligibility to obtain

and maintain clinical privileges in the

Pinellas County EMS System shall meet both

State of Florida and Pinellas County

requirements, including those for levels of

patient contact as d etermined by the Medical

Director.

2. Compliance with the criteria for County

certification shall be maintained

continuously. If at any time a Count

certified individual fails to maintain all

requirements, this shall be cause for the

Medical Director to take corrective action

as outlined in Section XIII.

3. Provider agencies shall submit an

affidavit, using a form provided by the

Office of the Medical Director, in the form

of Exhibit A, which itemizes the background

checks that have been performed by t he

provider agency and which results reveal

there are no causes for concern regarding

extension of clinical privileges.

* * *

D. Paramedics

1. Provisional Certification

Paramedics may obtain temporary extension of

clinical privileges to provid e ALS level

patient care in the Pinellas County EMS

System in the form of Provisional County

Certification. Such provisional

certification must be obtained by meeting

the following criteria prior to

participating in patient care at the ALS

level:

* * *

2. Certification (Non - provisional)

In addition to those requirements for

provisional certification, Paramedics

seeking to obtain County certification for

full clinical privileges shall meet the

following requirements:

a. Current BTLS certificat ion

b . Passing score on the Medical Operation

Manual (MOM) examination proctored by the

Office of Medical Director

c . Successful completion of an interview

with the Medical Director or designee

d . Submission of a request to obtain non -

provisional Cou nty paramedic certification

e. Submission by the primary employing

provider agency of a summary report of

satisfactory completion of clinical

orientation and demonstration of

satisfactory patient care performance as

documented in a manner specified by t he

Medical Director

f. Satisfactory completion of all required

CME during the period since obtaining non -

provisional certification status and on a

continuous basis thereafter

g. Written approval by the Medical Director

25. There does not seem to be a ny dispute that Respondent

satisfied the basic requirements for certification.

26. A s part of the certification process, Respondent's

employer submitted an affidavit in substantially the format

dictated by the Director 's Rules and Regulations. The affida vit

stated:

AFFIDAVIT AS TO BACKGROUND

The undersigned dul y authorized representative of Sunstar ("Provider")

hereby certifies as follows:

1. Adam Baginski [Paramedic is circled] COUNTY EMS ID #747187

("Applicant") is currently employed by Provider and has been employed

by Provider since [Date] 1 - 17 - 05.

2. In connection with the employment of Applicant, Provider conducted

such inquiries and investigations necessary to determine that:

( a ) Applicant has been fingerprinted by the employing agency or

sup porting law enforcement agency. Such fingerprint card has been

transmitted to the Florida Department of Law Enforcement criminal

history service unit; and

( b ) Applicant (i) has not been convicted of a felony, (ii) has not

been convicted of a misdemeanor directly related to his/her

employment, or (iii) has not pled nolo contendere to any charge of

felony; and

( c ) The employing agency has attempted inquiry to all former

employers of the applicant preceding application for county

certification; and

( d ) Applicant has good moral character , a s has been determined in

accordance with Section 633.34, Florida Statutes, and FAC 4A - 37.036

regulations issued pursuant thereto; and

( e ) The employing agency has contacted three persons (not relatives)

from whom info rmation relating to the applicant's morality can be

obtained.

3. In connection with Applicant's application for clinical privileges

in the Pinellas County Emergency Medical Services System ("EMS

System"), Provider has reviewed the inquiries and investiga tions

described in Paragraph 2.

4. Provider has found nothing in the inquiries and investigations

described in Paragraph 2, or otherwise, which would give Provider

reasonable cause to believe that Applicant should be denied clinical

privileges in the EMS System.

Signed and dated this 17 day of January, 2005.

[signed by Respondent] By: [signed by employer representative]

APPLICANT PROVIDER

Sworn to before me this 17 day of January, 2005

Signed and sealed by Notary Public]

27. The nature of the af fidavit leaves no doubt that

Respondent's prior employment record was both investigated and

confirmed by Sun Star. The affidavit was then relied upon by

the Medical Director as a basis for issuing certification to

Respondent . The concern raised by the Di rector that Respondent

omitted one of his places of employment in the questionnaire is

without merit.

28. The Director requires compliance with the Medical

Operations Manual when dealing with certain types of patients.

For patients exhibiting signs of a stroke or Transient Ischemic

Attack, Section 5.34 of the manual is supposed to be employed.

That section directs the health care provider as to how to

evaluate and intervene with stroke victims.

29. It is clear that the Director has the duty to

disciplin e a paramedic who does not conform to the rules and

statutes governing their profession. The Director also has the

burden of proof, by clear and convincing evidence, that the

paramedic is guilty of violations. Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); Ferris B.

Turlington , 510 So. 2d 292 (Fla. 1987); and Pou v. Department of

Insurance and Treasury , 707 So. 2d 941 (Fla. 3rd DCA 1998).

30. The evaluation of the pa tient conducted by Respondent ,

while admittedly not as full and complete as it might have been

with a more cooperative subject, was nonetheless in accordance

with the Medical Operations Manual requirements utilized by the

Director's office.

31. The eviden ce in this case does not rise to the level

of clear and convincing. Respondent may have some reticence to

handling non - emergency cases. His bedside manner may not be

what it could be. But , there is no evidence that , in the

actions at issue in this proce eding , Respondent failed to meet

the standards of professionalism.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Pinellas

County Emergency Medical Services, Office of the Medical

Director, reversing the decision to terminate Respondent's

certification as a paramedic in Pinellas County .

DONE AND ENTERED this 1 4 th day of February , 2008 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MC KIBBEN

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

Div ision of Administrative Hearings

this 1 4 th day of February , 2008 .

ENDNOTES

1/ It should be noted that Respondent also submitted an

affidavit from Sun Star indicating Sun Star had contacted all of

Respondent's prior employers. The Sun Star application filed by

Respondent did include the Lee County job ; so , the fact it was

left off the written questionnair e is not extremely pertinent.

Besides, the omission of a prior employment on the questionnaire

does not mandate discipline by the Director ; it is pure ly

discretionary by the Director depending on the intent of the

applicant.

2/ The Director did not assert that it would not have certified

Respondent if it knew he had omitted one of h is prior places of

employment.

3/ Respondent and Burns had been team ed together for

approximately three other shifts prior to the incident at issue.

Burns had never seen anything concerning Respondent's work that

was outside the boundaries of professionalism.

4/ The VA hospital was not the closest facility to the scene,

but the patient was adamant that he needed to go there. The

response team acquiesced to his demand .

COPIES FURNISHED :

Robert G. Walker, Jr., Esquire

Robert G. Walker, P.A.

1421 Court Street, Suite F

Clearwater, Florida 33756

Desiree Demonbreun, Esqu ire

Dawn Siler - Nixon, Esquire

Ford and Harrison, LLP

101 East Kennedy Boulevard, Suite 900

Tampa, Florida 33602

Laurie A. Romig, M.D., FACEP

Office of the Medical Director

Pinellas County Emergency Medical Services

12490 Ulmerton Road

Largo, Florida 337 74

Robert Swain, Esquire

Pinellas County Attorney's Office

315 Court Street, Sixt h Floor

Clearwater, Florida 33756 - 5165

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.