09-005365 Agency For Health Care Administration vs. Gulf Coast Medical Center Lee Memorial Health System Status: Closed Recommended Order on Friday, April 30, 2010.

Summary: Petitioner proved by clear and convincing evidence that sanctions are warranted for two cited deficiencies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE )

ADMINISTRATION, )

)

Petitioner, )

)

vs. ) Case Nos. 09-5360

) 09-5363

GULF COAST MEDICAL CENTER, LEE MEMORIAL HEALTH SYSTEM, ) 09-5364

) 09-5365

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, a final hearing was

conducted in this case on January 25 through 29, 2010, in Fort

Myers, Florida, before Administrative Law Judge R. Bruce

McKibben of the Division of Administrative Hearings. The

parties were represented as set forth below.

APPEARANCES

For Petitioner: Andrea M. Lang, Esquire

Agency for Health Care Administration

2295 Victoria Avenue, Room 346C

Fort Myers, Florida 33901

For Respondent: W. David Watkins, Esquire

Watkins & Associates, P.A.

Post Office Box 15828

Tallahassee, Florida 32317-5828

STATEMENT OF THE ISSUES

The issues in this case are set forth in 11 separate counts

within the four consolidated cases:

Case No. 09-5360

Count I--Whether Respondent failed to properly monitor and

care for a patient in restraints.

Count II--Whether Respondent failed to ensure the

physician's plan of care for patient was implemented.

Case No. 09-5363

Count I--Whether Respondent failed to properly implement

the physician's plan of care for patient.

Case No. 09-5364

Count I--Whether Respondent failed to ensure a patients'

right to privacy.

Count II--Whether Respondent failed to ensure that food was

served in the prescribed safe temperature zone.

Count III--Whether Respondent failed to ensure that only

authorized personnel had access to locked areas where

medications were stored.

Count IV--Whether Respondent failed to perform proper

nursing assessments of a patient.

Count V--Dismissed.

Count VI--Whether Respondent failed to maintain patient

care equipment in a safe operating condition.

Case No. 09-5365

Count I--Whether Respondent failed to triage a patient with

stroke-like symptoms in a timely fashion.

Count II--Whether Respondent's nursing staff failed to

assess and intervene for patients or ensure implementation of

the physician's plan of care.

PRELIMINARY STATEMENT

On September 1 and 2, 2009, Petitioner, Agency for Health

Care Administration (AHCA), issued four Administrative

Complaints against Respondent, Gulf Coast Medical Center, Lee

Memorial Health System. Respondent filed a separate Petition

for Formal Administrative Hearing in response to each of the

Administrative Complaints. The Petitions were forwarded to the

Division of Administrative Hearings so that a formal

administrative hearing could be conducted. The parties asked

that the four cases not be consolidated, but that the final

hearing in each case be held at one time, that is,

consecutively.

After much debate, four final hearings were set. Prior to

the final hearing, however, the parties agreed that less time

would be needed than previously anticipated. The hearing was

then set to commence on January 25, 2010, for Case No. 09-5360,

with each of the other cases following in chronological order.

The hearing was commenced on January 25, 2010. During the first

day of hearing, the parties stipulated that it might be prudent

to consolidate the cases after all. By agreed oral motion of

the parties, an Order consolidating the cases was entered, and

the consolidated matters were heard during the week of

January 25 through 29, 2010.

At the final hearing, both parties appeared and were

represented by counsel.

AHCA called 11 witnesses: Nancy Furdell, health facilities

evaluator; Patricia Kaczmarek, registered nurse (RN) specialist;

Basil Birch, RN specialist; Charlene Fisher, RN, surveyor

supervisor; Mary Ruth Pinto, public health nutrition consultant;

Gary Furdell, fire protection specialist; Ann Dolan, RN

specialist; Linda Mozen, RN specialist; Patricia O'Connell, RN

specialist; Eleanor Seville, RN specialist, and Donna Ford, RN

specialist. Petitioner also offered 35 exhibits into evidence,

of which the following were admitted: Exhibits Nos. 1 through

24, 26 through 30, 34, and 35.

Respondent called seven witnesses: Holly Muller,

vice-president of Patient Care Services; June Schneider, nursing

director of the Surgical Progressive Care Unit; Kathleen Moore,

food services director; Linda Odnoha, director of the Intensive

Care Unit; Peter Duggan, director of Pharmacy Services; Claude

Houle, administrative director of Surgical Services; and Delecia

Tidaback, nursing director of the Emergency Department.

Respondent offered 50 exhibits into evidence, of which the

following were admitted: Exhibits Nos. 1 through 21,

30 through 38, 40 through 45, and 47 through 49. At the

conclusion of the final hearing, Respondent asked to submit

another exhibit (No. 51) into evidence. Leave was given to

submit the exhibit, followed by any objection Petitioner might

have to its admission. The exhibit was filed; Petitioner

objected on various grounds. Based upon a review of the exhibit

and the objection, Exhibit No. 51 was rejected and will not form

a basis for any finding in this Recommended Order.

A transcript of the final hearing was ordered by the

parties. The Transcript was filed at the Division of

Administrative Hearings on March 11, 2010. (A portion of the

transcript was erroneously omitted from the initial filing. The

missing pages were filed as Volume 5 of the transcript on

April 8, 2010.) By rule, parties were allowed ten days to

submit proposed recommended orders. However, the parties

requested and were allowed 30 days after filing of the

Transcript, or April 12, 2010, to file their proposed findings

of fact and conclusions of law. Each party timely submitted a

Proposed Recommended Order, and each was duly considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state agency responsible for, inter

alia , monitoring health care facilities in the state to ensure

compliance with all governing statutes, rules and regulations.

It is the responsibility of AHCA to regularly inspect facilities

upon unannounced visits. Often AHCA will inspect facilities for

the purpose of licensure renewal, certification, or in

conjunction with federal surveys. AHCA will also inspect

facilities on the basis of complaints filed by members of the

general public.

2. Respondent, Gulf Coast Medical Center ("Gulf Coast" or

"GCH") is a hospital within the Lee Memorial Health System.

South West Florida Regional Medical Center ("SWF") was another

hospital within the Lee Memorial Health System. SWF closed in

March 2009, when it was consolidated with Gulf Coast.

3. On October 15, 2008, the Agency conducted a complaint

investigation at SWF; a follow-up complaint investigation was

done on November 13, 2008. SWF filed and implemented a plan of

correction for the issues raised in each of the investigations.

The November investigation resulted in an Administrative

Complaint containing two counts.

4. On December 16, 2008, AHCA performed another complaint

investigation at Gulf Coast. Gulf Coast filed and implemented a

plan of correction for the issues raised in the investigation.

The investigation resulted in an Administrative Complaint

containing one count.

5. On January 5 through 9, 2009, AHCA conducted a routine

licensure survey at Gulf Coast. The hospital filed and

implemented a plan of correction for the issues raised in the

survey. The survey resulted in an Administrative Complaint

containing six counts (although Count V was dismissed during the

course of the final hearing).

6. On February 18, 2009, AHCA did its follow-up survey to

the previous licensure survey. Gulf Coast filed and implemented

a plan of correction for the issues raised in the survey. The

survey resulted in an Administrative Complaint containing two

counts.

Case 09-5360

7. The complaint investigation at SWF on November 13,

2008, was conducted under the supervision of Charlene Fisher.

8. Count I in this case addresses findings by the Agency

concerning a patient who was placed in restraints at the

hospital on August 28, 2008. The patient, A.D., came into the

hospital emergency department under the Baker Act seeking

medical clearance to a facility. The patient presented at

approximately 4:00 p.m., with back pain. He had a history of

drug abuse, so there was concern by the hospital regarding the

use of narcotics or certain other medications to treat the

patient. The patient engaged in some scuffling with police.

A physician signed and dated a four-point restraint (one on each

limb) order, resulting in the patient being physically

restrained. The restraint was deemed a medical/surgical

restraint, rather than a behavioral restraint. AHCA had

concerns about the restraint, specifically whether there was a

notation for Q 15 (or every 15 minutes) monitoring of the

restrained patient. However, medical/surgical restraints only

require monitoring every two hours. The restraint worksheet for

the patient confirms monitoring every two hours. The patient

was ultimately admitted to the hospital at 9:37 p.m., and,

thereafter, began complaining of left shoulder pain. The

hospital responded to the patient's complaints about back pain

and began treating the pain with analgesics. However, the

patient continued to complain about the pain. An X-ray of the

patient's shoulder was finally done the next morning. Shoulder

dislocation was confirmed by the X-ray, and the hospital (four

hours later) began a more substantive regimen of treatment for

pain. Surgery occurred the following morning, and the shoulder

problem was resolved.

9. It is clear the patient had a shoulder injury, but it

is unclear as to when that injury became more painful than the

back injury with which the patient had initially presented. The

evidence is unclear whether or when the shoulder injury became

obvious to hospital staff. During its course of treating this

patient, the hospital provided Motrin, Tylenol, Morphine,

Percocet and other medications to treat the patient's pain.

10. Count II in this case also involved a restrained

patient, M.D., who had presented to the emergency department

under the Baker Act. The patient was released from handcuffs

upon arrival at the hospital. After subsequently fighting with

a deputy, this patient was also placed in a medical/surgical

restraint pursuant to a physician's order. The doctor signed

and dated, but did not put a time on, the restraint order. A

time is important because there are monitoring requirements for

patients in restraints. However, the time of 0050 (12:50 a.m.)

appears on the patient's chart and is the approximate time the

restraints were initiated. The proper procedure is to monitor a

restrained patient every two hours. This patient, however, was

removed from his restraints prior to the end of the first

two-hour period. Thus, there are no records of monitoring for

the patient (nor would any be necessary).

11. The evidence presented by AHCA was insufficient to

establish definitively whether the hospital nursing staff failed

to properly respond to the aforementioned patients' needs. It

is clear the patients could have received more care, but there

is not enough evidence to prove the care provided was

inadequate.

Case No. 09-5363

12. On December 16, 2008, AHCA conducted a complaint

investigation at SWF. The Agency had received a complaint that

the hospital did not properly implement a physician's plan of

care.

13. Count I in this complaint addresses alleged errors

relating to two of four patients reviewed by the surveyors.

Both of the patients came to the hospital from a nursing home.

One patient, I.A., had presented to the emergency department

complaining of chest pains. The medication list sent to the

hospital by the nursing home for I.A. actually belonged to

someone other than I.A. I.A.'s name was not on the medication

list. The drugs listed on the patient chart were different than

the drugs I.A. had been taking at the skilled nursing facility

from which she came. The skilled nursing facility actually sent

I.A.'s roommate's medication list. The erroneous medications

were then ordered by the admitting physician and administered to

the patient.

14. The hospital is supposed to review the medication list

it receives and then enter the medications into the hospital

system. The person reviewing the medication list does not

necessarily have to be a nurse, and there is no evidence that

the person making the error in this case was a nurse or was some

other employee. It is clear, however, that the person reviewing

the medication list did not properly ascertain that the list

belonged to patient I.A.

15. The other patient from the nursing home had been

admitted for surgery at SWF. Again, the nursing home from

whence she came sent a medication list that was incorrect. The

medications on the incorrect list were entered into the system

by a SWF employee. The erroneous medications were ultimately

ordered by the attending physician for the patient, but there is

no evidence the patient was ever administered those medications.

Neither of the residents was harmed by the incorrect medications

as far as could be determined.

Case 09-5364

16. From January 5 through 8, 2009, AHCA conducted a

licensure survey at Gulf Coast and SWF in conjunction with a

federal certification survey.

17. Count I of the complaint resulting from this survey

addressed the right of privacy for two residents. In one

instance, a patient was observed in her bed with her breasts

exposed to plain view. In the other instance, a patient's

personal records were found in a "public" place, i.e., hanging

on the rail of a hallway in the hospital.

18. AHCA's surveyor, Nancy Furdell, saw a female patient

who was apparently asleep lying in her bed. The patient's

breasts were exposed as she slept. Furdell observed this fact

at approximately 1:15 p.m., on January 7, 2009. Furdell did not

see a Posey vest on the patient. She did not know if anyone

else saw the exposed breasts. Furdell continued with her survey

duties, and at approximately 5:00 p.m., notified a staff member

as to what she had seen. Furdell did not attempt to cover the

patient or wake the patient to tell her to cover up.

19. The female patient with exposed breasts was in the

intensive care unit (ICU) of the hospital. Visiting hours in

ICU at that time were 10:00 to 10:30 a.m., and again from 2:00

till 2:30 p.m. Thus, at the time Furdell was present, no

outside visitors would have been in the ICU. ICU patients are

checked on by nursing staff every half-hour to an hour,

depending on their needs. This particular patient would be

visited more frequently due to her medical condition. On the

day in question, the patient was supposed to be wearing a Posey

vest in an effort to stop the patient from removing her tubing.

The patient had been agitated and very restless earlier,

necessitating the Posey vest.

20. Also on January 7, 2009, a surveyor observed some

"papers" rolled up and stuffed inside a hand-rail in the

hospital corridor. This occurred at 1:15 p.m., on the fourth

floor of the south wing of the hospital. A review of the papers

revealed them to be patient records for a patient on that floor.

21. The surveyor could not state at final hearing whether

there were hospital personnel in the vicinity of the handrail

where she found the patient records, nor could she say how long

the patient records had been in the handrail. Rather, the

evidence is simply that the records were seen in the handrail

and were not in anyone's possession at that moment in time.

22. Count II of the complaint was concerned with the

temperature of certain foods being prepared for distribution to

patients. Foods for patients are supposed to be kept at certain

required temperatures. There is a "danger zone" for foods which

starts at 40 degrees Fahrenheit and ends at 141 degrees

Fahrenheit. Temperature, along with time, food and environment,

is an important factor in preventing contamination of food and

the development of bacteria.

23. Surveyor Mary Ruth Pinto took part in the survey. As

part of her duties, she asked hospital staff to measure the

temperature of foods on the serving line. She found some

peaches at 44 degrees, yogurt at 50 degrees, and cranberry juice

at 66 degrees Fahrenheit. According to Pinto, the hospital's

refrigerator temperatures were appropriate, so it was only food

out on the line that was at issue. Pinto remembers talking to

the hospital dietary manager and remembers the dietary manager

agreeing to destroy the aforementioned food items.

24. The hospital policies and procedures in place on the

date of the survey were consistent with the U.S. Food and Drug

Administration Food Code concerning the storage, handling and

serving of food. The policies acknowledge the danger zone for

foods, but allow foods to stay within the danger zone for up to

four hours. In the case of the peaches and yogurt, neither had

been in the danger zone for very long (not more than two hours).

The cranberry juice was "shelf stable," meaning that it could be

stored at room temperature.

25. The food services director for the hospital remembers

the peaches and yogurt being re-chilled in a chill blaster. She

does not believe any of the food was destroyed.

26. Count III of the complaint addressed whether an

unauthorized person had access to a room where medications were

being stored. A state surveyor, Gary Furdell, was part of the

survey team on January 5, 2009. Furdell was touring the second

floor of the hospital when he noticed a locked door. Furdell

asked a hospital medical technician who was standing nearby

about the door. The medical technician gave Furdell the code to

unlock the door. Furdell peeked inside and noticed bottles that

he presumed were medications. It would be a violation for a

medical technician to have access to medications, because

medical technicians cannot distribute drugs.

27. The room Furdell looked into is a "mixed use" room

located behind a nursing station. A mixed use room is used to

store medical supplies, including medications, as long as there

is a locked cabinet in the room for that purpose. This

particular mixed use room had a locked cabinet. The room is

used for the preparation of medications and for other purposes.

No narcotics were stored in this particular mixed use room. The

room contained locked cabinets used to store other medications.

The evidence presented was insufficient to determine what

"medications" Furdell may have seen in the room.

28. Count IV of the complaint concerned the nursing

assessment of a patient, and whether the assessment was properly

and timely performed. A patient, M.S., had been admitted to the

hospital on June 18, 2008, for lung surgery. Following the

surgery, Amiodarone (a very toxic drug which can cause clots and

other complications) was administered to treat M.S. for heart

arrhythmia. The Amiodarone was administered intravenously and

M.S. developed blisters and irritation at the intravenous site.

That is not an uncommon complication with Amiodarone. M.S.'s

attending physician was notified about the irritation and

prescribed a treatment. He also ordered a consult with an

infectious disease specialist who ultimately changed M.S.'s

antibiotics. Although M.S. was seen daily by her physicians,

the nursing notes do not reflect the assessment and treatment of

her blisters. It appears that proper care was rendered, but the

care was not documented properly.

29. Another patient was admitted to the hospital on

December 15, 2008, with End Stage Renal Disease and diabetes

mellitus for which she began dialysis treatment. The patient

was not weighed before and after a particular dialysis treatment

on January 5, 2009. However, the patient had been moved to an

air mattress bed on that date for comfort. The air mattress bed

did not allow for a weight to be taken as it could be on a

regular bed.

30. There is an allegation in the Administrative Complaint

concerning the discontinuation of the calorie count for a

patient. This issue was not discussed in AHCA's Proposed

Recommended Order, nor was sufficient evidence of any wrong-

doing concerning this matter presented at final hearing.

31. During the survey, the hospital was found to be

storing the medication Mannitol in blanket warmers, rather than

in warmers specifically designed for the drug. The blanket

warmers maintained the Mannitol at 100-to-110 degrees

Fahrenheit. The manufacturer's label on the drug calls for it

to be dispensed (injected) at between 86 and 98.5 degrees

Fahrenheit. In order to meet this requirement, the hospital

takes the drug out of the blanket warmer in time for it to cool

sufficiently before it is injected. There is nothing inherently

wrong with using a blanket warmer to store Mannitol.

32. On January 5, 2009, a surveyor found two vials of

Thrombin, one vial of half-percent Lidocaine and Epi, and one

vial of Bacitracin in operating room No. 4. The operating room

is within the secured and locked suite of surgical rooms on the

second floor. Two of the vials had syringes stuck in them and

one of them was spiked. Whoever had mixed the medications was

not attending to them at the time the surveyor made her

observation. There were two unlicensed technicians in the room

preparing for the next surgery. A registered nurse anesthetist

was present as well. There was no identifying patient

information on the medications. The hospital's policies and

procedures do not require the patient's name to be on the label

of medications prepared for impending surgery. That is because

the procedures for the operating room include a process for

ensuring that only the correct patient can be in the designated

operating room. There is a fail-safe process for ensuring that

only the proper patient can receive the medications that are set

out.

33. At around 2:45 p.m. on January 5, 2009, there were

patient records in the emergency department showing that several

drugs had been administered to a patient. The surveyor did not

see a written order signed by a physician authorizing the drugs.

When the surveyor returned the next morning, the order had been

signed by the physician. The hospital policy is that such

orders may be carried out in the emergency department without a

doctor's signature, but that a physician must sign the order

before the end of their shift. AHCA cannot say whether the

physician signed the order at the end of his shift or early the

next day.

34. Count V of the complaint was voluntarily dismissed by

the Agency.

35. Count VI of the complaint concerned the status of

certain patient care equipment, and whether such equipment was

being maintained in a safe operating condition. A patient was

weighed at the hospital upon admission on December 27, 2008, and

found to weigh 130 pounds using a bed scale. Six days later, on

January 2, 2009, the patient's weight was recorded as 134

pounds. Two days later, in the same unit, the patient weighed

147 pounds and the next day was recorded as weighing 166 pounds.

During the survey process, the patient was weighed and recorded

at 123 pounds on a chair scale.

36. The hospital does not dispute the weights which were

recorded, but suggests there are many factors other than

calibration of the equipment that could explain the discrepant

weights. For example, the AHCA surveyor could not say whether

the patient sometimes had necessary medical equipment on his bed

while being weighed, whether different beds were involved, or

whether any other factors existed. AHCA relies solely on the

weight records of this single patient to conclude that the

hospital scales were inaccurate.

Case No. 09-5365

37. On February 18, 2009, AHCA conducted a licensure

survey at Gulf Coast.

38. Count I of the complaint from this survey concerned

the timeliness of triage for a patient who presented at the

hospital emergency department with stroke-like symptoms.

39. AHCA surveyors witnessed two patients on stretchers in

the ambulance entrance hallway leading to the emergency

department. Each of the two patients had been brought in by a

separate emergency medical service (EMS) team and was awaiting

triage. One patient was taken to an emergency department room

(ER room) 50 minutes after his/her arrival at the hospital. The

other patient waited 45 minutes after arrival before being

admitted to an ER room. Meanwhile, a third patient arrived at

2:20 p.m., and was awaiting triage 25 minutes later. During

their observation, the surveyors saw several nursing staff in

the desk area of the emergency department, i.e., they did not

appear to be performing triage duties.

40. The emergency department on that date was quite busy.

That is not unusual during February, as census tends to rise

during the winter months due to the influx of seasonal

residents. A summary of the action within the emergency

department from 1:00 p.m. to 3:00 p.m., on the day of the survey

shows the following:

Patient L.G., 74 years old with stable vital

signs, was radioed in by her EMS team at 1:08;

L.G. was processed into the ER at 1:21 (which is

not an unreasonable time; EMS teams call in when

they arrive at or near the hospital. By the time

they gain access, wait their turn if multiple

ambulances are present, and get the patient

inside, several minutes may lapse). L.G. was

stabilized and quickly reviewed by ER staff, then

officially triaged at 2:04.

Patient H.M., an 89-year-old male residing in a

nursing home, arrived at 1:20 and was processed

in at 1:59. He was triaged at 2:01, but

ultimately signed out of the hospital against

medical advice.

Patient E.M. arrived at 2:18 and was processed at

2:iage occurred one minute later. This

patient presented as a stroke alert, and hospital

protocol for that type patient was followed.

Patient C.J. arrived at 1:08 and was processed at

2:iage occurred immediately after C.J. was

processed. This patient was not stroke alert,

but had some stroke-like symptoms. 1 C.J. had not

been transported to the hospital as emergent,

because the symptoms had been going on for 24

hours.

Patient W.M., an auto accident victim, arrived at

1:40 and was processed at 1:iage occurred

within six minutes.

Patient M.M., W.M.'s wife (who had been with M.M.

in the automobile accident, but was placed in a

separate ambulance), arrived at 2:06 and was

triaged at 2:34. There is no record of when M.M.

was processed.

Patient L.M. came to the hospital from a nursing

home. She arrived at 1:43 and was processed at

2:35. L.M. was triaged at 2:37.

Patient K.M. arrived at 2:45 and was processed

within three minutesiage occurred at 2:52.

Her triage was done very quickly due to the

condition in which she arrived, i.e., shortness

of breath and low oxygen saturation.

Patient R.S. arrived at 1:00 and was triaged at

1:15.

41. The aforementioned patients represent the patients

presenting to the emergency department by ambulance during a

two-hour period on a very busy day. It is the customary

procedure for ER staff to make a quick visual review (rapid

triage) of patients as they come into the hospital. Those with

obvious distress or life-threatening conditions are officially

triaged first. Others, as long as they are stable, are allowed

to wait until staff is available for them. As part of their

duties, nurses necessarily have to be in the desk area (nursing

station) in order to field phone calls from physicians

concerning treatment of the patients who present. It is not

unusual or improper for nurses to be in the nursing station

while residents are waiting in the processing area.

42. It is clear that some patients waited a much longer

time for triage than others. However, without a complete record

of all patients who presented that day and a complete review of

each of their conditions, it is impossible to say whether the

hospital was dilatory in triaging any of them.

43. Count II of the complaint addressed the nursing staff

and whether it failed to assess and intervene in the care of a

patient or failed to implement a physician's plan of care for

the patient.

44. Patient D.W. was a 67-year-old female who was morbidly

obese, diabetic, debilitated, had end stage renal disease, and

was receiving dialysis. Upon admission, D.W. had a Stage 3

pressure ulcer to her sacrum and a Stage 4 ulcer on her left

calf. A wound care protocol was initiated immediately, and a

Clinitron bed was obtained for her on the day of admission. Due

to the seriousness of her condition, the wound care physician

declined to accept her case at first. He later ordered Panafil,

and it became part of the protocol for treating the patient.

The nursing documentation for D.W. was only minimally

sufficient, but it does indicate that care was provided.

45. Patient R.H. was an 83-year-old male who presented on

February 10, 2009, in critical condition. R.H. was suffering

from congestive heart failure, pneumonia, and respiratory

failure. Due to the critical nature of his respiratory

problems, R.H. was placed on a ventilator. As a ventilator

patient, he did not fit the profile for obtaining wound care.

Nonetheless, the hospital implemented various other measures to

deal with R.H.'s pressure wounds.

CONCLUSIONS OF LAW

46. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

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

and Chapter 395, Florida Statutes (2009). Unless otherwise

stated specifically herein, all references to Florida Statutes

will be to the 2009 codification.

47. AHCA is asserting the affirmative of the issue in this

case and, therefore, has the burden of proof. Inasmuch as the

fines proposed by AHCA are penal in nature, the standard of

proof is clear and convincing evidence. Department of Banking

and Finance, Division of Securities and Investor Protection v.

Osbourne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996); see also

Young v. Department of Community Affairs , 625 So. 2d 831 (Fla.

1993).

48. Clear and convincing evidence has been described as

follows:

[C]lear and convincing evidence requires

that the evidence must be found to be

credible; the facts to which the witnesses

testify must be distinctly remembered; the

testimony must be precise and explicit and

the witnesses must be lacking in confusion

as to the facts in issue. The evidence must

be of such weight that it produces in the

mind of the trier of fact a firm belief or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established.

Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

49. Except for Count I in Case No. 09-5363 and Count VI in

Case No. 09-5364, AHCA failed to prove the allegations set forth

in the Administrative Complaint by clear and convincing

evidence. Therefore, no fines should be imposed in the other

counts in Case Nos. 09-5360, 09-5364 and 09-5365.

50. As to Case No. 09-5363, AHCA did show by clear and

convincing evidence that the hospital erroneously listed the

wrong medications for two patients who presented from a nursing

home. However, it is a mitigating factor that the patients

presented to the hospital with nursing home records already

containing the wrong medications. There is no evidence,

however, that the nursing staff committed the error of failing

to correct the erroneous records sent by the nursing home.

However, someone on the hospital staff should have discovered

the error. Due to the mitigating factor and the lack of actual

harm to either resident, a fine of $500.00 would be appropriate

for that violation.

51. As to Count VI in Case No. 09-5364, the discrepancies

in the patient's weight is a strong suggestion that either the

hospital's equipment was malfunctioning or necessary care was

not being taken when weighing the patient. Due to the lack of

actual evidence as to any particular scale's being defective, an

administrative fine of $500.00 would be appropriate for that

violation.

52. AHCA relies upon Subsection 395.1065(2)(a),(b),

Florida Statutes, as its authority to impose fines in this case.

That statutory subsection states:

(2)(a) The agency may impose an

administrative fine, not to exceed $1,000

per violation, per day, for the violation of

any provision of this part, part II of

chapter 408, or applicable rules. Each day

of violation constitutes a separate

violation and is subject to a separate fine.

(b) In determining the amount of fine to

be levied for a violation, as provided in

paragraph (a), the following factors shall

be considered:

1. The severity of the violation,

including the probability that death or

serious harm to the health or safety of any

person will result or has resulted, the

severity of the actual or potential harm,

and the extent to which the provisions of

this part were violated.

2. Actions taken by the licensee to

correct the violations or to remedy

complaints.

3. Any previous violations of the

licensee.

53. Subsection 395.1055(1), Florida Statutes, sets forth

the Agency's authority to adopt and enforce rules regarding the

provisions of Chapter 395, Part I, Florida Statutes, which

governs the operation of hospitals. Under that authority, AHCA

adopted Florida Administrative Code Rule 59A-3.2085, which

states in pertinent part:

(5)(e) The nursing process of assessment,

planning, intervention and evaluation shall

be documented for each hospitalized patient

from admission through discharge.

1. Each patient's nursing needs shall be

assessed by a registered nurse at the time

of admission or within the period

established by each facility's policy.

2. Nursing goals shall be consistent with

the therapy prescribed by the responsible

medical practitioner.

3. Nursing intervention and patient

response, and patient status on discharge

from the hospital, must be noted on the

medical record.

54. AHCA would be within its rights under Florida

Administrative Code Rule 59A-3.2085(5)(e) to impose a fine

against the hospital for failure to properly assess the two

patients' medication needs at the time of admission in Case

No. 09-5363.

55. Florida Administrative Code Rule 59A-3.276 states:

(1) Each hospital shall develop,

implement, and maintain a written preventive

maintenance plan, in conjunction with the

policies and procedures developed by the

infection control committee, to ensure that

the facility is maintained in accordance

with the following:

(a) The interior and exterior of

buildings shall be in good repair, free of

hazards, and painted as needed;

(b) All patient care equipment shall be

maintained in a clean, properly calibrated,

and safe operating condition;

(c) All plumbing fixtures shall be

maintained in good repair to assure proper

functioning, and provided with back flow

prevention devices, when required, to

prevent contamination from entering the

water supply;

(d) All mechanical and electrical

equipment shall be maintained in working

order, and shall be accessible for cleaning

and inspection;

(e) Loose, cracked, or peeling wallpaper

or paint shall be promptly replaced or

repaired to provide a satisfactory finish;

(f) All furniture and furnishings,

including mattresses, pillows, and other

bedding; window coverings; including

curtains, blinds, shades, and screens; and

cubicle curtains or privacy screens, shall

be maintained in good repair; and

(g) The grounds and buildings shall be

maintained in a safe and sanitary condition

and kept free from refuse, litter, and

vermin breeding or harborage areas.

(2) Each hospital shall employ or

otherwise arrange for sufficient personnel

to implement and maintain its preventive

maintenance program.

56. AHCA would be within its rights under Florida

Administrative Code Rule 59A-3.276(b) and (d) to impose a fine

against the hospital for failure to properly maintain its

equipment as alleged in Count VI in Case No. 09-5364.

57. AHCA also adopted Florida Administrative Code Rule

59A-3.253 pursuant to its authority granted in Subsection

395.1055(1), Florida Statutes. That rule includes the following

provision:

(11) SANCTIONS.--The agency shall impose

sanctions, in accordance with Section

395.1065, F.S., on those hospitals which

fail to submit an acceptable plan of

correction or implement actions to correct

deficiencies identified by the agency or an

appropriate accrediting organization which

are specified in an approved plan of

correction or as identified as a result of a

complaint investigation.

58. Respondent argues that inasmuch as it submitted plans

of correction which were accepted by AHCA, there is no basis for

imposing a fine against Respondent. Respondent's interpretation

of Florida Administrative Code Rule 59A-3.253 is rejected. AHCA

is not prohibited from imposing a fine in this case pursuant to

its authority in Section 395.1065, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Petitioner,

Agency for Health Care Administration, imposing a fine in the

amount of $500.00 in DOAH Case No. 09-5363 and a fine in the

amount of $500.00 in DOAH Case No. 09-5364, Count VI.

DONE AND ENTERED this 30th day of April, 2010, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April, 2010.

ENDNOTE

1/ A stroke alert is a patient with the onset of stroke-like

symptoms within the previous three hours. Such patients can

receive treatment that can vastly improve their chances of

avoiding long-term effects of the stroke. Stroke patients, on

the other hand, have had the symptoms for longer than three

hours and are not candidates for the preventative treatment.

COPIES FURNISHED :

Thomas W. Arnold, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308-5403

Justin Senior, General Counsel

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Richard J. Shoop, Agency Clerk

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

Andrea M. Lang, Esquire

Agency for Health Care Administration

2295 Victoria Avenue, Room 346C

Fort Myers, Florida 33901

W. David Watkins, Esquire

Watkins & Associates, P.A.

Post Office Box 15828

Tallahassee, Florida 32317-5828

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.