09-005363 Agency For Health Care Administration vs. Gulf Coast Medical Center Lee Memorial Health System
 Status: Closed
Recommended Order on Friday, April 30, 2010.


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

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8AGENCY FOR HEALTH CARE )

13ADMINISTRATION, )

15)

16Petitioner, )

18)

19vs. ) Case Nos. 09-5360

24) 09-5363

26GULF COAST MEDICAL CENTER, LEE MEMORIAL HEALTH SYSTEM, ) 09-5364

36) 09-5365

38)

39Respondent. )

41)

42RECOMMENDED ORDER

44Pursuant to notice to all parties, a final hearing was

54conducted in this case on January 25 through 29, 2010, in Fort

66Myers, Florida, before Administrative Law Judge R. Bruce

74McKibben of the Division of Administrative Hearings. The

82parties were represented as set forth below.

89APPEARANCES

90For Petitioner: Andrea M. Lang, Esquire

96Agency for Health Care Administration

1012295 Victoria Avenue, Room 346C

106Fort Myers, Florida 33901

110For Respondent: W. David Watkins, Esquire

116Watkins & Associates, P.A.

120Post Office Box 15828

124Tallahassee, Florida 32317-5828

127STATEMENT OF THE ISSUES

131The issues in this case are set forth in 11 separate counts

143within the four consolidated cases:

148Case No. 09-5360

151Count I--Whether Respondent failed to properly monitor and

159care for a patient in restraints.

165Count II--Whether Respondent failed to ensure the

172physician's plan of care for patient was implemented.

180Case No. 09-5363

183Count I--Whether Respondent failed to properly implement

190the physician's plan of care for patient.

197Case No. 09-5364

200Count I--Whether Respondent failed to ensure a patients'

208right to privacy.

211Count II--Whether Respondent failed to ensure that food was

220served in the prescribed safe temperature zone.

227Count III--Whether Respondent failed to ensure that only

235authorized personnel had access to locked areas where

243medications were stored.

246Count IV--Whether Respondent failed to perform proper

253nursing assessments of a patient.

258Count V--Dismissed.

260Count VI--Whether Respondent failed to maintain patient

267care equipment in a safe operating condition.

274Case No. 09-5365

277Count I--Whether Respondent failed to triage a patient with

286stroke-like symptoms in a timely fashion.

292Count II--Whether Respondent's nursing staff failed to

299assess and intervene for patients or ensure implementation of

308the physician's plan of care.

313PRELIMINARY STATEMENT

315On September 1 and 2, 2009, Petitioner, Agency for Health

325Care Administration (AHCA), issued four Administrative

331Complaints against Respondent, Gulf Coast Medical Center, Lee

339Memorial Health System. Respondent filed a separate Petition

347for Formal Administrative Hearing in response to each of the

357Administrative Complaints. The Petitions were forwarded to the

365Division of Administrative Hearings so that a formal

373administrative hearing could be conducted. The parties asked

381that the four cases not be consolidated, but that the final

392hearing in each case be held at one time, that is,

403consecutively.

404After much debate, four final hearings were set. Prior to

414the final hearing, however, the parties agreed that less time

424would be needed than previously anticipated. The hearing was

433then set to commence on January 25, 2010, for Case No. 09-5360,

445with each of the other cases following in chronological order.

455The hearing was commenced on January 25, 2010. During the first

466day of hearing, the parties stipulated that it might be prudent

477to consolidate the cases after all. By agreed oral motion of

488the parties, an Order consolidating the cases was entered, and

498the consolidated matters were heard during the week of

507January 25 through 29, 2010.

512At the final hearing, both parties appeared and were

521represented by counsel.

524AHCA called 11 witnesses: Nancy Furdell, health facilities

532evaluator; Patricia Kaczmarek, registered nurse (RN) specialist;

539Basil Birch, RN specialist; Charlene Fisher, RN, surveyor

547supervisor; Mary Ruth Pinto, public health nutrition consultant;

555Gary Furdell, fire protection specialist; Ann Dolan, RN

563specialist; Linda Mozen, RN specialist; Patricia O'Connell, RN

571specialist; Eleanor Seville, RN specialist, and Donna Ford, RN

580specialist. Petitioner also offered 35 exhibits into evidence,

588of which the following were admitted: Exhibits Nos. 1 through

59824, 26 through 30, 34, and 35.

605Respondent called seven witnesses: Holly Muller,

611vice-president of Patient Care Services; June Schneider, nursing

619director of the Surgical Progressive Care Unit; Kathleen Moore,

628food services director; Linda Odnoha, director of the Intensive

637Care Unit; Peter Duggan, director of Pharmacy Services; Claude

646Houle, administrative director of Surgical Services; and Delecia

654Tidaback, nursing director of the Emergency Department.

661Respondent offered 50 exhibits into evidence, of which the

670following were admitted: Exhibits Nos. 1 through 21,

67830 through 38, 40 through 45, and 47 through 49. At the

690conclusion of the final hearing, Respondent asked to submit

699another exhibit (No. 51) into evidence. Leave was given to

709submit the exhibit, followed by any objection Petitioner might

718have to its admission. The exhibit was filed; Petitioner

727objected on various grounds. Based upon a review of the exhibit

738and the objection, Exhibit No. 51 was rejected and will not form

750a basis for any finding in this Recommended Order.

759A transcript of the final hearing was ordered by the

769parties. The Transcript was filed at the Division of

778Administrative Hearings on March 11, 2010. (A portion of the

788transcript was erroneously omitted from the initial filing. The

797missing pages were filed as Volume 5 of the transcript on

808April 8, 2010.) By rule, parties were allowed ten days to

819submit proposed recommended orders. However, the parties

826requested and were allowed 30 days after filing of the

836Transcript, or April 12, 2010, to file their proposed findings

846of fact and conclusions of law. Each party timely submitted a

857Proposed Recommended Order, and each was duly considered in the

867preparation of this Recommended Order.

872FINDINGS OF FACT

8751. Petitioner is the state agency responsible for, inter

884alia , monitoring health care facilities in the state to ensure

894compliance with all governing statutes, rules and regulations.

902It is the responsibility of AHCA to regularly inspect facilities

912upon unannounced visits. Often AHCA will inspect facilities for

921the purpose of licensure renewal, certification, or in

929conjunction with federal surveys. AHCA will also inspect

937facilities on the basis of complaints filed by members of the

948general public.

9502. Respondent, Gulf Coast Medical Center ("Gulf Coast" or

"960GCH") is a hospital within the Lee Memorial Health System.

971South West Florida Regional Medical Center ("SWF") was another

982hospital within the Lee Memorial Health System. SWF closed in

992March 2009, when it was consolidated with Gulf Coast.

10013. On October 15, 2008, the Agency conducted a complaint

1011investigation at SWF; a follow-up complaint investigation was

1019done on November 13, 2008. SWF filed and implemented a plan of

1031correction for the issues raised in each of the investigations.

1041The November investigation resulted in an Administrative

1048Complaint containing two counts.

10524. On December 16, 2008, AHCA performed another complaint

1061investigation at Gulf Coast. Gulf Coast filed and implemented a

1071plan of correction for the issues raised in the investigation.

1081The investigation resulted in an Administrative Complaint

1088containing one count.

10915. On January 5 through 9, 2009, AHCA conducted a routine

1102licensure survey at Gulf Coast. The hospital filed and

1111implemented a plan of correction for the issues raised in the

1122survey. The survey resulted in an Administrative Complaint

1130containing six counts (although Count V was dismissed during the

1140course of the final hearing).

11456. On February 18, 2009, AHCA did its follow-up survey to

1156the previous licensure survey. Gulf Coast filed and implemented

1165a plan of correction for the issues raised in the survey. The

1177survey resulted in an Administrative Complaint containing two

1185counts.

1186Case 09-5360

11887. The complaint investigation at SWF on November 13,

11972008, was conducted under the supervision of Charlene Fisher.

12068. Count I in this case addresses findings by the Agency

1217concerning a patient who was placed in restraints at the

1227hospital on August 28, 2008. The patient, A.D., came into the

1238hospital emergency department under the Baker Act seeking

1246medical clearance to a facility. The patient presented at

1255approximately 4:00 p.m., with back pain. He had a history of

1266drug abuse, so there was concern by the hospital regarding the

1277use of narcotics or certain other medications to treat the

1287patient. The patient engaged in some scuffling with police.

1296A physician signed and dated a four-point restraint (one on each

1307limb) order, resulting in the patient being physically

1315restrained. The restraint was deemed a medical/surgical

1322restraint, rather than a behavioral restraint. AHCA had

1330concerns about the restraint, specifically whether there was a

1339notation for Q 15 (or every 15 minutes) monitoring of the

1350restrained patient. However, medical/surgical restraints only

1356require monitoring every two hours. The restraint worksheet for

1365the patient confirms monitoring every two hours. The patient

1374was ultimately admitted to the hospital at 9:37 p.m., and,

1384thereafter, began complaining of left shoulder pain. The

1392hospital responded to the patient's complaints about back pain

1401and began treating the pain with analgesics. However, the

1410patient continued to complain about the pain. An X-ray of the

1421patient's shoulder was finally done the next morning. Shoulder

1430dislocation was confirmed by the X-ray, and the hospital (four

1440hours later) began a more substantive regimen of treatment for

1450pain. Surgery occurred the following morning, and the shoulder

1459problem was resolved.

14629. It is clear the patient had a shoulder injury, but it

1474is unclear as to when that injury became more painful than the

1486back injury with which the patient had initially presented. The

1496evidence is unclear whether or when the shoulder injury became

1506obvious to hospital staff. During its course of treating this

1516patient, the hospital provided Motrin, Tylenol, Morphine,

1523Percocet and other medications to treat the patient's pain.

153210. Count II in this case also involved a restrained

1542patient, M.D., who had presented to the emergency department

1551under the Baker Act. The patient was released from handcuffs

1561upon arrival at the hospital. After subsequently fighting with

1570a deputy, this patient was also placed in a medical/surgical

1580restraint pursuant to a physician's order. The doctor signed

1589and dated, but did not put a time on, the restraint order. A

1602time is important because there are monitoring requirements for

1611patients in restraints. However, the time of 0050 (12:50 a.m.)

1621appears on the patient's chart and is the approximate time the

1632restraints were initiated. The proper procedure is to monitor a

1642restrained patient every two hours. This patient, however, was

1651removed from his restraints prior to the end of the first

1662two-hour period. Thus, there are no records of monitoring for

1672the patient (nor would any be necessary).

167911. The evidence presented by AHCA was insufficient to

1688establish definitively whether the hospital nursing staff failed

1696to properly respond to the aforementioned patients' needs. It

1705is clear the patients could have received more care, but there

1716is not enough evidence to prove the care provided was

1726inadequate.

1727Case No. 09-5363

173012. On December 16, 2008, AHCA conducted a complaint

1739investigation at SWF. The Agency had received a complaint that

1749the hospital did not properly implement a physician's plan of

1759care.

176013. Count I in this complaint addresses alleged errors

1769relating to two of four patients reviewed by the surveyors.

1779Both of the patients came to the hospital from a nursing home.

1791One patient, I.A., had presented to the emergency department

1800complaining of chest pains. The medication list sent to the

1810hospital by the nursing home for I.A. actually belonged to

1820someone other than I.A. I.A.'s name was not on the medication

1831list. The drugs listed on the patient chart were different than

1842the drugs I.A. had been taking at the skilled nursing facility

1853from which she came. The skilled nursing facility actually sent

1863I.A.'s roommate's medication list. The erroneous medications

1870were then ordered by the admitting physician and administered to

1880the patient.

188214. The hospital is supposed to review the medication list

1892it receives and then enter the medications into the hospital

1902system. The person reviewing the medication list does not

1911necessarily have to be a nurse, and there is no evidence that

1923the person making the error in this case was a nurse or was some

1937other employee. It is clear, however, that the person reviewing

1947the medication list did not properly ascertain that the list

1957belonged to patient I.A.

196115. The other patient from the nursing home had been

1971admitted for surgery at SWF. Again, the nursing home from

1981whence she came sent a medication list that was incorrect. The

1992medications on the incorrect list were entered into the system

2002by a SWF employee. The erroneous medications were ultimately

2011ordered by the attending physician for the patient, but there is

2022no evidence the patient was ever administered those medications.

2031Neither of the residents was harmed by the incorrect medications

2041as far as could be determined.

2047Case 09-5364

204916. From January 5 through 8, 2009, AHCA conducted a

2059licensure survey at Gulf Coast and SWF in conjunction with a

2070federal certification survey.

207317. Count I of the complaint resulting from this survey

2083addressed the right of privacy for two residents. In one

2093instance, a patient was observed in her bed with her breasts

2104exposed to plain view. In the other instance, a patient's

2114personal records were found in a "public" place, i.e., hanging

2124on the rail of a hallway in the hospital.

213318. AHCA's surveyor, Nancy Furdell, saw a female patient

2142who was apparently asleep lying in her bed. The patient's

2152breasts were exposed as she slept. Furdell observed this fact

2162at approximately 1:15 p.m., on January 7, 2009. Furdell did not

2173see a Posey vest on the patient. She did not know if anyone

2186else saw the exposed breasts. Furdell continued with her survey

2196duties, and at approximately 5:00 p.m., notified a staff member

2206as to what she had seen. Furdell did not attempt to cover the

2219patient or wake the patient to tell her to cover up.

223019. The female patient with exposed breasts was in the

2240intensive care unit (ICU) of the hospital. Visiting hours in

2250ICU at that time were 10:00 to 10:30 a.m., and again from 2:00

2263till 2:30 p.m. Thus, at the time Furdell was present, no

2274outside visitors would have been in the ICU. ICU patients are

2285checked on by nursing staff every half-hour to an hour,

2295depending on their needs. This particular patient would be

2304visited more frequently due to her medical condition. On the

2314day in question, the patient was supposed to be wearing a Posey

2326vest in an effort to stop the patient from removing her tubing.

2338The patient had been agitated and very restless earlier,

2347necessitating the Posey vest.

235120. Also on January 7, 2009, a surveyor observed some

"2361papers" rolled up and stuffed inside a hand-rail in the

2371hospital corridor. This occurred at 1:15 p.m., on the fourth

2381floor of the south wing of the hospital. A review of the papers

2394revealed them to be patient records for a patient on that floor.

240621. The surveyor could not state at final hearing whether

2416there were hospital personnel in the vicinity of the handrail

2426where she found the patient records, nor could she say how long

2438the patient records had been in the handrail. Rather, the

2448evidence is simply that the records were seen in the handrail

2459and were not in anyone's possession at that moment in time.

247022. Count II of the complaint was concerned with the

2480temperature of certain foods being prepared for distribution to

2489patients. Foods for patients are supposed to be kept at certain

2500required temperatures. There is a "danger zone" for foods which

2510starts at 40 degrees Fahrenheit and ends at 141 degrees

2520Fahrenheit. Temperature, along with time, food and environment,

2528is an important factor in preventing contamination of food and

2538the development of bacteria.

254223. Surveyor Mary Ruth Pinto took part in the survey. As

2553part of her duties, she asked hospital staff to measure the

2564temperature of foods on the serving line. She found some

2574peaches at 44 degrees, yogurt at 50 degrees, and cranberry juice

2585at 66 degrees Fahrenheit. According to Pinto, the hospital's

2594refrigerator temperatures were appropriate, so it was only food

2603out on the line that was at issue. Pinto remembers talking to

2615the hospital dietary manager and remembers the dietary manager

2624agreeing to destroy the aforementioned food items.

263124. The hospital policies and procedures in place on the

2641date of the survey were consistent with the U.S. Food and Drug

2653Administration Food Code concerning the storage, handling and

2661serving of food. The policies acknowledge the danger zone for

2671foods, but allow foods to stay within the danger zone for up to

2684four hours. In the case of the peaches and yogurt, neither had

2696been in the danger zone for very long (not more than two hours).

2709The cranberry juice was "shelf stable," meaning that it could be

2720stored at room temperature.

272425. The food services director for the hospital remembers

2733the peaches and yogurt being re-chilled in a chill blaster. She

2744does not believe any of the food was destroyed.

275326. Count III of the complaint addressed whether an

2762unauthorized person had access to a room where medications were

2772being stored. A state surveyor, Gary Furdell, was part of the

2783survey team on January 5, 2009. Furdell was touring the second

2794floor of the hospital when he noticed a locked door. Furdell

2805asked a hospital medical technician who was standing nearby

2814about the door. The medical technician gave Furdell the code to

2825unlock the door. Furdell peeked inside and noticed bottles that

2835he presumed were medications. It would be a violation for a

2846medical technician to have access to medications, because

2854medical technicians cannot distribute drugs.

285927. The room Furdell looked into is a "mixed use" room

2870located behind a nursing station. A mixed use room is used to

2882store medical supplies, including medications, as long as there

2891is a locked cabinet in the room for that purpose. This

2902particular mixed use room had a locked cabinet. The room is

2913used for the preparation of medications and for other purposes.

2923No narcotics were stored in this particular mixed use room. The

2934room contained locked cabinets used to store other medications.

2943The evidence presented was insufficient to determine what

"2951medications" Furdell may have seen in the room.

295928. Count IV of the complaint concerned the nursing

2968assessment of a patient, and whether the assessment was properly

2978and timely performed. A patient, M.S., had been admitted to the

2989hospital on June 18, 2008, for lung surgery. Following the

2999surgery, Amiodarone (a very toxic drug which can cause clots and

3010other complications) was administered to treat M.S. for heart

3019arrhythmia. The Amiodarone was administered intravenously and

3026M.S. developed blisters and irritation at the intravenous site.

3035That is not an uncommon complication with Amiodarone. M.S.'s

3044attending physician was notified about the irritation and

3052prescribed a treatment. He also ordered a consult with an

3062infectious disease specialist who ultimately changed M.S.'s

3069antibiotics. Although M.S. was seen daily by her physicians,

3078the nursing notes do not reflect the assessment and treatment of

3089her blisters. It appears that proper care was rendered, but the

3100care was not documented properly.

310529. Another patient was admitted to the hospital on

3114December 15, 2008, with End Stage Renal Disease and diabetes

3124mellitus for which she began dialysis treatment. The patient

3133was not weighed before and after a particular dialysis treatment

3143on January 5, 2009. However, the patient had been moved to an

3155air mattress bed on that date for comfort. The air mattress bed

3167did not allow for a weight to be taken as it could be on a

3182regular bed.

318430. There is an allegation in the Administrative Complaint

3193concerning the discontinuation of the calorie count for a

3202patient. This issue was not discussed in AHCA's Proposed

3211Recommended Order, nor was sufficient evidence of any wrong-

3220doing concerning this matter presented at final hearing.

322831. During the survey, the hospital was found to be

3238storing the medication Mannitol in blanket warmers, rather than

3247in warmers specifically designed for the drug. The blanket

3256warmers maintained the Mannitol at 100-to-110 degrees

3263Fahrenheit. The manufacturer's label on the drug calls for it

3273to be dispensed (injected) at between 86 and 98.5 degrees

3283Fahrenheit. In order to meet this requirement, the hospital

3292takes the drug out of the blanket warmer in time for it to cool

3306sufficiently before it is injected. There is nothing inherently

3315wrong with using a blanket warmer to store Mannitol.

332432. On January 5, 2009, a surveyor found two vials of

3335Thrombin, one vial of half-percent Lidocaine and Epi, and one

3345vial of Bacitracin in operating room No. 4. The operating room

3356is within the secured and locked suite of surgical rooms on the

3368second floor. Two of the vials had syringes stuck in them and

3380one of them was spiked. Whoever had mixed the medications was

3391not attending to them at the time the surveyor made her

3402observation. There were two unlicensed technicians in the room

3411preparing for the next surgery. A registered nurse anesthetist

3420was present as well. There was no identifying patient

3429information on the medications. The hospital's policies and

3437procedures do not require the patient's name to be on the label

3449of medications prepared for impending surgery. That is because

3458the procedures for the operating room include a process for

3468ensuring that only the correct patient can be in the designated

3479operating room. There is a fail-safe process for ensuring that

3489only the proper patient can receive the medications that are set

3500out.

350133. At around 2:45 p.m. on January 5, 2009, there were

3512patient records in the emergency department showing that several

3521drugs had been administered to a patient. The surveyor did not

3532see a written order signed by a physician authorizing the drugs.

3543When the surveyor returned the next morning, the order had been

3554signed by the physician. The hospital policy is that such

3564orders may be carried out in the emergency department without a

3575doctor's signature, but that a physician must sign the order

3585before the end of their shift. AHCA cannot say whether the

3596physician signed the order at the end of his shift or early the

3609next day.

361134. Count V of the complaint was voluntarily dismissed by

3621the Agency.

362335. Count VI of the complaint concerned the status of

3633certain patient care equipment, and whether such equipment was

3642being maintained in a safe operating condition. A patient was

3652weighed at the hospital upon admission on December 27, 2008, and

3663found to weigh 130 pounds using a bed scale. Six days later, on

3676January 2, 2009, the patient's weight was recorded as 134

3686pounds. Two days later, in the same unit, the patient weighed

3697147 pounds and the next day was recorded as weighing 166 pounds.

3709During the survey process, the patient was weighed and recorded

3719at 123 pounds on a chair scale.

372636. The hospital does not dispute the weights which were

3736recorded, but suggests there are many factors other than

3745calibration of the equipment that could explain the discrepant

3754weights. For example, the AHCA surveyor could not say whether

3764the patient sometimes had necessary medical equipment on his bed

3774while being weighed, whether different beds were involved, or

3783whether any other factors existed. AHCA relies solely on the

3793weight records of this single patient to conclude that the

3803hospital scales were inaccurate.

3807Case No. 09-5365

381037. On February 18, 2009, AHCA conducted a licensure

3819survey at Gulf Coast.

382338. Count I of the complaint from this survey concerned

3833the timeliness of triage for a patient who presented at the

3844hospital emergency department with stroke-like symptoms.

385039. AHCA surveyors witnessed two patients on stretchers in

3859the ambulance entrance hallway leading to the emergency

3867department. Each of the two patients had been brought in by a

3879separate emergency medical service (EMS) team and was awaiting

3888triage. One patient was taken to an emergency department room

3898(ER room) 50 minutes after his/her arrival at the hospital. The

3909other patient waited 45 minutes after arrival before being

3918admitted to an ER room. Meanwhile, a third patient arrived at

39292:20 p.m., and was awaiting triage 25 minutes later. During

3939their observation, the surveyors saw several nursing staff in

3948the desk area of the emergency department, i.e., they did not

3959appear to be performing triage duties.

396540. The emergency department on that date was quite busy.

3975That is not unusual during February, as census tends to rise

3986during the winter months due to the influx of seasonal

3996residents. A summary of the action within the emergency

4005department from 1:00 p.m. to 3:00 p.m., on the day of the survey

4018shows the following:

4021Patient L.G., 74 years old with stable vital

4029signs, was radioed in by her EMS team at 1:08;

4039L.G. was processed into the ER at 1:21 (which is

4049not an unreasonable time; EMS teams call in when

4058they arrive at or near the hospital. By the time

4068they gain access, wait their turn if multiple

4076ambulances are present, and get the patient

4083inside, several minutes may lapse). L.G. was

4090stabilized and quickly reviewed by ER staff, then

4098officially triaged at 2:04.

4102Patient H.M., an 89-year-old male residing in a

4110nursing home, arrived at 1:20 and was processed

4118in at 1:59. He was triaged at 2:01, but

4127ultimately signed out of the hospital against

4134medical advice.

4136Patient E.M. arrived at 2:18 and was processed at

41452:iage occurred one minute later. This

4151patient presented as a stroke alert, and hospital

4159protocol for that type patient was followed.

4166Patient C.J. arrived at 1:08 and was processed at

41752:iage occurred immediately after C.J. was

4181processed. This patient was not stroke alert,

4188but had some stroke-like symptoms. 1 C.J. had not

4197been transported to the hospital as emergent,

4204because the symptoms had been going on for 24

4213hours.

4214Patient W.M., an auto accident victim, arrived at

42221:40 and was processed at 1:iage occurred

4229within six minutes.

4232Patient M.M., W.M.'s wife (who had been with M.M.

4241in the automobile accident, but was placed in a

4250separate ambulance), arrived at 2:06 and was

4257triaged at 2:34. There is no record of when M.M.

4267was processed.

4269Patient L.M. came to the hospital from a nursing

4278home. She arrived at 1:43 and was processed at

42872:35. L.M. was triaged at 2:37.

4293Patient K.M. arrived at 2:45 and was processed

4301within three minutesiage occurred at 2:52.

4307Her triage was done very quickly due to the

4316condition in which she arrived, i.e., shortness

4323of breath and low oxygen saturation.

4329Patient R.S. arrived at 1:00 and was triaged at

43381:15.

433941. The aforementioned patients represent the patients

4346presenting to the emergency department by ambulance during a

4355two-hour period on a very busy day. It is the customary

4366procedure for ER staff to make a quick visual review (rapid

4377triage) of patients as they come into the hospital. Those with

4388obvious distress or life-threatening conditions are officially

4395triaged first. Others, as long as they are stable, are allowed

4406to wait until staff is available for them. As part of their

4418duties, nurses necessarily have to be in the desk area (nursing

4429station) in order to field phone calls from physicians

4438concerning treatment of the patients who present. It is not

4448unusual or improper for nurses to be in the nursing station

4459while residents are waiting in the processing area.

446742. It is clear that some patients waited a much longer

4478time for triage than others. However, without a complete record

4488of all patients who presented that day and a complete review of

4500each of their conditions, it is impossible to say whether the

4511hospital was dilatory in triaging any of them.

451943. Count II of the complaint addressed the nursing staff

4529and whether it failed to assess and intervene in the care of a

4542patient or failed to implement a physician's plan of care for

4553the patient.

455544. Patient D.W. was a 67-year-old female who was morbidly

4565obese, diabetic, debilitated, had end stage renal disease, and

4574was receiving dialysis. Upon admission, D.W. had a Stage 3

4584pressure ulcer to her sacrum and a Stage 4 ulcer on her left

4597calf. A wound care protocol was initiated immediately, and a

4607Clinitron bed was obtained for her on the day of admission. Due

4619to the seriousness of her condition, the wound care physician

4629declined to accept her case at first. He later ordered Panafil,

4640and it became part of the protocol for treating the patient.

4651The nursing documentation for D.W. was only minimally

4659sufficient, but it does indicate that care was provided.

466845. Patient R.H. was an 83-year-old male who presented on

4678February 10, 2009, in critical condition. R.H. was suffering

4687from congestive heart failure, pneumonia, and respiratory

4694failure. Due to the critical nature of his respiratory

4703problems, R.H. was placed on a ventilator. As a ventilator

4713patient, he did not fit the profile for obtaining wound care.

4724Nonetheless, the hospital implemented various other measures to

4732deal with R.H.'s pressure wounds.

4737CONCLUSIONS OF LAW

474046. The Division of Administrative Hearings has

4747jurisdiction over the parties to and the subject matter of this

4758proceeding pursuant to Section 120.569, Subsection 120.57(1),

4765and Chapter 395, Florida Statutes (2009). Unless otherwise

4773stated specifically herein, all references to Florida Statutes

4781will be to the 2009 codification.

478747. AHCA is asserting the affirmative of the issue in this

4798case and, therefore, has the burden of proof. Inasmuch as the

4809fines proposed by AHCA are penal in nature, the standard of

4820proof is clear and convincing evidence. Department of Banking

4829and Finance, Division of Securities and Investor Protection v.

4838Osbourne Stern & Co. , 670 So. 2d 932, 934 (Fla. 1996); see also

4851Young v. Department of Community Affairs , 625 So. 2d 831 (Fla.

48621993).

486348. Clear and convincing evidence has been described as

4872follows:

4873[C]lear and convincing evidence requires

4878that the evidence must be found to be

4886credible; the facts to which the witnesses

4893testify must be distinctly remembered; the

4899testimony must be precise and explicit and

4906the witnesses must be lacking in confusion

4913as to the facts in issue. The evidence must

4922be of such weight that it produces in the

4931mind of the trier of fact a firm belief or

4941conviction, without hesitancy, as to the

4947truth of the allegations sought to be

4954established.

4955Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

496749. Except for Count I in Case No. 09-5363 and Count VI in

4980Case No. 09-5364, AHCA failed to prove the allegations set forth

4991in the Administrative Complaint by clear and convincing

4999evidence. Therefore, no fines should be imposed in the other

5009counts in Case Nos. 09-5360, 09-5364 and 09-5365.

501750. As to Case No. 09-5363, AHCA did show by clear and

5029convincing evidence that the hospital erroneously listed the

5037wrong medications for two patients who presented from a nursing

5047home. However, it is a mitigating factor that the patients

5057presented to the hospital with nursing home records already

5066containing the wrong medications. There is no evidence,

5074however, that the nursing staff committed the error of failing

5084to correct the erroneous records sent by the nursing home.

5094However, someone on the hospital staff should have discovered

5103the error. Due to the mitigating factor and the lack of actual

5115harm to either resident, a fine of $500.00 would be appropriate

5126for that violation.

512951. As to Count VI in Case No. 09-5364, the discrepancies

5140in the patient's weight is a strong suggestion that either the

5151hospital's equipment was malfunctioning or necessary care was

5159not being taken when weighing the patient. Due to the lack of

5171actual evidence as to any particular scale's being defective, an

5181administrative fine of $500.00 would be appropriate for that

5190violation.

519152. AHCA relies upon Subsection 395.1065(2)(a),(b),

5198Florida Statutes, as its authority to impose fines in this case.

5209That statutory subsection states:

5213(2)(a) The agency may impose an

5219administrative fine, not to exceed $1,000

5226per violation, per day, for the violation of

5234any provision of this part, part II of

5242chapter 408, or applicable rules. Each day

5249of violation constitutes a separate

5254violation and is subject to a separate fine.

5262(b) In determining the amount of fine to

5270be levied for a violation, as provided in

5278paragraph (a), the following factors shall

5284be considered:

52861. The severity of the violation,

5292including the probability that death or

5298serious harm to the health or safety of any

5307person will result or has resulted, the

5314severity of the actual or potential harm,

5321and the extent to which the provisions of

5329this part were violated.

53332. Actions taken by the licensee to

5340correct the violations or to remedy

5346complaints.

53473. Any previous violations of the

5353licensee.

535453. Subsection 395.1055(1), Florida Statutes, sets forth

5361the Agency's authority to adopt and enforce rules regarding the

5371provisions of Chapter 395, Part I, Florida Statutes, which

5380governs the operation of hospitals. Under that authority, AHCA

5389adopted Florida Administrative Code Rule 59A-3.2085, which

5396states in pertinent part:

5400(5)(e) The nursing process of assessment,

5406planning, intervention and evaluation shall

5411be documented for each hospitalized patient

5417from admission through discharge.

54211. Each patient's nursing needs shall be

5428assessed by a registered nurse at the time

5436of admission or within the period

5442established by each facility's policy.

54472. Nursing goals shall be consistent with

5454the therapy prescribed by the responsible

5460medical practitioner.

54623. Nursing intervention and patient

5467response, and patient status on discharge

5473from the hospital, must be noted on the

5481medical record.

548354. AHCA would be within its rights under Florida

5492Administrative Code Rule 59A-3.2085(5)(e) to impose a fine

5500against the hospital for failure to properly assess the two

5510patients' medication needs at the time of admission in Case

5520No. 09-5363.

552255. Florida Administrative Code Rule 59A-3.276 states:

5529(1) Each hospital shall develop,

5534implement, and maintain a written preventive

5540maintenance plan, in conjunction with the

5546policies and procedures developed by the

5552infection control committee, to ensure that

5558the facility is maintained in accordance

5564with the following:

5567(a) The interior and exterior of

5573buildings shall be in good repair, free of

5581hazards, and painted as needed;

5586(b) All patient care equipment shall be

5593maintained in a clean, properly calibrated,

5599and safe operating condition;

5603(c) All plumbing fixtures shall be

5609maintained in good repair to assure proper

5616functioning, and provided with back flow

5622prevention devices, when required, to

5627prevent contamination from entering the

5632water supply;

5634(d) All mechanical and electrical

5639equipment shall be maintained in working

5645order, and shall be accessible for cleaning

5652and inspection;

5654(e) Loose, cracked, or peeling wallpaper

5660or paint shall be promptly replaced or

5667repaired to provide a satisfactory finish;

5673(f) All furniture and furnishings,

5678including mattresses, pillows, and other

5683bedding; window coverings; including

5687curtains, blinds, shades, and screens; and

5693cubicle curtains or privacy screens, shall

5699be maintained in good repair; and

5705(g) The grounds and buildings shall be

5712maintained in a safe and sanitary condition

5719and kept free from refuse, litter, and

5726vermin breeding or harborage areas.

5731(2) Each hospital shall employ or

5737otherwise arrange for sufficient personnel

5742to implement and maintain its preventive

5748maintenance program.

575056. AHCA would be within its rights under Florida

5759Administrative Code Rule 59A-3.276(b) and (d) to impose a fine

5769against the hospital for failure to properly maintain its

5778equipment as alleged in Count VI in Case No. 09-5364.

578857. AHCA also adopted Florida Administrative Code Rule

579659A-3.253 pursuant to its authority granted in Subsection

5804395.1055(1), Florida Statutes. That rule includes the following

5812provision:

5813(11) SANCTIONS.--The agency shall impose

5818sanctions, in accordance with Section

5823395.1065, F.S., on those hospitals which

5829fail to submit an acceptable plan of

5836correction or implement actions to correct

5842deficiencies identified by the agency or an

5849appropriate accrediting organization which

5853are specified in an approved plan of

5860correction or as identified as a result of a

5869complaint investigation.

587158. Respondent argues that inasmuch as it submitted plans

5880of correction which were accepted by AHCA, there is no basis for

5892imposing a fine against Respondent. Respondent's interpretation

5899of Florida Administrative Code Rule 59A-3.253 is rejected. AHCA

5908is not prohibited from imposing a fine in this case pursuant to

5920its authority in Section 395.1065, Florida Statutes.

5927RECOMMENDATION

5928Based on the foregoing Findings of Fact and Conclusions of

5938Law, it is

5941RECOMMENDED that a final order be entered by Petitioner,

5950Agency for Health Care Administration, imposing a fine in the

5960amount of $500.00 in DOAH Case No. 09-5363 and a fine in the

5973amount of $500.00 in DOAH Case No. 09-5364, Count VI.

5983DONE AND ENTERED this 30th day of April, 2010, in

5993Tallahassee, Leon County, Florida.

5997R. BRUCE MCKIBBEN

6000Administrative Law Judge

6003Division of Administrative Hearings

6007The DeSoto Building

60101230 Apalachee Parkway

6013Tallahassee, Florida 32399-3060

6016(850) 488-9675

6018Fax Filing (850) 921-6847

6022www.doah.state.fl.us

6023Filed with the Clerk of the

6029Division of Administrative Hearings

6033this 30th day of April, 2010.

6039ENDNOTE

60401/ A stroke alert is a patient with the onset of stroke-like

6052symptoms within the previous three hours. Such patients can

6061receive treatment that can vastly improve their chances of

6070avoiding long-term effects of the stroke. Stroke patients, on

6079the other hand, have had the symptoms for longer than three

6090hours and are not candidates for the preventative treatment.

6099COPIES FURNISHED :

6102Thomas W. Arnold, Secretary

6106Agency for Health Care Administration

61112727 Mahan Drive, Mail Stop 3

6117Tallahassee, Florida 32308-5403

6120Justin Senior, General Counsel

6124Agency for Health Care Administration

61292727 Mahan Drive, Mail Stop 3

6135Tallahassee, Florida 32308

6138Richard J. Shoop, Agency Clerk

6143Agency for Health Care Administration

61482727 Mahan Drive, Mail Stop 3

6154Tallahassee, Florida 32308

6157Andrea M. Lang, Esquire

6161Agency for Health Care Administration

61662295 Victoria Avenue, Room 346C

6171Fort Myers, Florida 33901

6175W. David Watkins, Esquire

6179Watkins & Associates, P.A.

6183Post Office Box 15828

6187Tallahassee, Florida 32317-5828

6190NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6196All parties have the right to submit written exceptions within

620615 days from the date of this Recommended Order. Any exceptions

6217to this Recommended Order should be filed with the agency that

6228will issue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 07/01/2010
Proceedings: Letter to Judge Kilbride from V. Fairchild regarding the court's ruling filed.
PDF:
Date: 06/22/2010
Proceedings: Agency Final Order
PDF:
Date: 06/22/2010
Proceedings: Agency Final Order filed.
PDF:
Date: 05/07/2010
Proceedings: Motion for Extension of Time filed.
PDF:
Date: 05/05/2010
Proceedings: Transmittal letter from Claudia Llado forwarding the Transcript of Proceedings (Corrected Index for January 25 and 26, 2010, and Gulf Coast Medical Center's Composite Exhibit numbered 51, to the agency.
PDF:
Date: 04/30/2010
Proceedings: Recommended Order
PDF:
Date: 04/30/2010
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 04/30/2010
Proceedings: Recommended Order (hearing held January 25-29, 2010). CASE CLOSED.
PDF:
Date: 04/12/2010
Proceedings: (Petitioner`s) Agency's Proposed Recommended Order filed.
PDF:
Date: 04/12/2010
Proceedings: (Respondent`s) Gulf Coast Medical Center Lee Memorial Health System's Proposed Recommended Order filed.
PDF:
Date: 04/09/2010
Proceedings: Notice of Withdrawal of Gulf Coast Medical Center Lee Memorial Health System's Emergency Motion to Clarify Proposed Order Filing Deadline filed.
PDF:
Date: 04/09/2010
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Emergency Motion to Clarify Proposed Order Filing Deadline filed.
Date: 04/08/2010
Proceedings: Transcript of Proceedings (corrected index) filed.
Date: 03/11/2010
Proceedings: Transcript (Volumes I-IV) filed.
PDF:
Date: 03/03/2010
Proceedings: Order Concerning Late-Filed Exhibits.
PDF:
Date: 03/03/2010
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Response to Agency's Objection to Respondent's Composite Exhibit 51 filed.
PDF:
Date: 02/19/2010
Proceedings: Agency Objection to Respondent's Composite Exhibit 51 filed.
PDF:
Date: 02/09/2010
Proceedings: Respondent's Exhibit 51 (exhibits not available for viewing) filed.
PDF:
Date: 02/01/2010
Proceedings: Respondent's Final Hearing exhibits (exhibits not available for viewing) filed.
PDF:
Date: 01/26/2010
Proceedings: Order of Consolidation (DOAH Case Nos. 09-5360, 09-5363, 09-5364, 09-5365).
Date: 01/25/2010
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 01/25/2010
Proceedings: Final Witness List of the Agency for Health Care Administration filed.
PDF:
Date: 01/25/2010
Proceedings: Agency Pre-Hearing Statement filed.
PDF:
Date: 01/25/2010
Proceedings: Exhibit List (exhibits not attached) filed.
PDF:
Date: 01/22/2010
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Exhibit List (exhibits not attached) filed.
PDF:
Date: 01/22/2010
Proceedings: Proposed Pre-hearing Stipulation filed.
PDF:
Date: 01/22/2010
Proceedings: Order Granting Motion to Amend Administrative Complaint.
PDF:
Date: 01/21/2010
Proceedings: Gulf Coast Medical Center's Response in Opposition to Motion to Amend Administrative Complaint and Motion to Dismiss filed.
PDF:
Date: 01/21/2010
Proceedings: Amended Notice of Hearing (hearing set for January 25 through 29 and February 1 through 3, 2010; 9:00 a.m.; Fort Myers, FL; amended as to dates of hearing).
PDF:
Date: 01/20/2010
Proceedings: Final Witness List of The Agency for Health Care Administration filed.
PDF:
Date: 01/19/2010
Proceedings: Notice of Taking Deposition Duces Tecum filed.
PDF:
Date: 01/14/2010
Proceedings: Motion to Amend Administrative Complaint filed.
Date: 01/13/2010
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 01/13/2010
Proceedings: Order.
PDF:
Date: 01/11/2010
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Response to Motion to Relinquish Jurisdiction filed.
PDF:
Date: 01/11/2010
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Response to Motion to Compel Discovery and for Sanctions and Request for Scheduling Conference filed.
PDF:
Date: 01/11/2010
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Final Witness List filed.
PDF:
Date: 01/07/2010
Proceedings: Motion to Compel Discovery and for Sanctions filed.
PDF:
Date: 01/07/2010
Proceedings: Motion to Relinquish Jurisdiction to the Agency filed.
PDF:
Date: 01/05/2010
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Notice of Taking Deposition(s) Duces Tecum filed.
PDF:
Date: 12/29/2009
Proceedings: Notice of Filing Petitioner's Response to Respondent's Third Request to Produce filed.
PDF:
Date: 12/23/2009
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Amended Notice of Taking Deposition(s) Duces Tecum of the Agency for Health Care Administration filed.
PDF:
Date: 12/21/2009
Proceedings: Agency for Health Care Administration's Preliminary Witness List filed.
PDF:
Date: 12/21/2009
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Notice of Taking Deposition(s) Duces Tecum filed.
PDF:
Date: 12/18/2009
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Preliminary Witness List filed.
PDF:
Date: 12/16/2009
Proceedings: Amended Order of Pre-hearing Instructions.
PDF:
Date: 12/10/2009
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Motion to Amend Order of Pre-hearing Instructions filed.
PDF:
Date: 12/10/2009
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Notice of Taking Deposition(s) Duces Tecum of the Agency for Health Care Administration (January 6, 2010) filed.
PDF:
Date: 12/10/2009
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Notice of Taking Deposition(s) Duces Tecum of the Agency for Health Care Administration (January 12, 2010) filed.
PDF:
Date: 12/08/2009
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Third Requests for Production of Documents to Agency for Health Care Administration filed.
PDF:
Date: 11/30/2009
Proceedings: Lee Memorial Health System, Inc.'s Responses to Request for Production of Documents from Agency for Health Care Administration filed.
PDF:
Date: 11/30/2009
Proceedings: Lee Memorial Health System, Inc.'s Notice of Service of Answers to First Interrogatories from Agency for Health Care Administration filed.
PDF:
Date: 11/18/2009
Proceedings: Notice of Filing Petitioner's Response to Respondent's Second Request to Produce filed.
PDF:
Date: 11/13/2009
Proceedings: Notice of Filing Petitioner's Response to Respondent's Request to Produce filed.
PDF:
Date: 11/13/2009
Proceedings: Notice of Service of Petitioner's Answers to Respondent's First Set of Interrogatories filed.
PDF:
Date: 10/23/2009
Proceedings: Notice of Service of Agency's First Set of Interrogatories and Request for Production of Documents to Respondent filed.
PDF:
Date: 10/22/2009
Proceedings: Notice of Hearing (hearing set for January 20 and 21, 2010; 9:00 a.m.; Fort Myers, FL).
PDF:
Date: 10/22/2009
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 10/20/2009
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's Second Requests for Production of Documents to Agency for Health Care Administration filed.
PDF:
Date: 10/16/2009
Proceedings: Gulf Coast Medical Center Lee Memorial Health System's First Requests for Production of Documents to Agency for Health Care Administration filed.
PDF:
Date: 10/16/2009
Proceedings: Gulf Coast Medical Center Lee Memorial Health System, Inc.'s Notice of Service of Interrogatories to Agency for Health Care Administration filed.
Date: 10/14/2009
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
PDF:
Date: 10/08/2009
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 10/02/2009
Proceedings: Initial Order.
PDF:
Date: 10/01/2009
Proceedings: Administrative Complaint filed.
PDF:
Date: 10/01/2009
Proceedings: Petition for Formal Administrative Proceeding filed.
PDF:
Date: 10/01/2009
Proceedings: Notice (of Agency referral) filed.

Case Information

Judge:
R. BRUCE MCKIBBEN
Date Filed:
10/01/2009
Date Assignment:
10/02/2009
Last Docket Entry:
07/01/2010
Location:
Fort Myers, Florida
District:
Middle
Agency:
Other
 

Counsels

Related DOAH Cases(s) (4):

Related Florida Statute(s) (4):

Related Florida Rule(s) (3):