18-002269PL Department Of Health, Board Of Nursing vs. Cynthia L. Denbow, A.R.N.P. Status: Closed Recommended Order on Wednesday, December 26, 2018.

Summary: Petitioner failed to demonstrate by clear and convincing evidence that Respondent failed to meet the standard of care for midwives, or that she inaccurately and deceptively kept records.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D EPARTMENT OF HEALTH,

BOARD OF NURSING ,

Petitioner,

vs. Case No. 1 8 - 2269 PL

CYNTHIA L. DENBOW , A.R.N.P.,

Respondent.

_______________________________/

RECOMMENDED ORDER

On A ugust 27 and 28, 2018 , a final hearing was held via

video teleconference with locations in Pensacola and

Tallahassee , Florida, before E. Gary Early , an Administrative

Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kristin M. Summers , Esquire

Sheryl E. Ellis , Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Respondent: Suzanne Suarez Hurley, Esquire

Suzanne Suarez Hurley, P.A.

Post Office Box 172474

Tampa, Florida 33672

ST ATEMENT OF THE ISSUE S

The issues to be determined are whether Respondent fell

below the minimum standard of acceptable nursing practice in

violation of section 464.018(1)(n), Florida Statutes; engaged in

unprofessional conduct by inaccurately recording in violation of

section 4 64.018(1)(h), Florida Statutes, and Florida

Administrative Code R ule 64B 9 - 8.005(1 ) ; or made deceptive,

fraudulent, or untrue statements in or related to the practice

of her profession in violation of section 456.072(1)(m), Florida

Statutes ; and , if so, the appropriate penalty.

PRELIMINARY STATEMENT

As a preamble to the more common and mundane matters that

typically comprise a preliminary statement, the undersigned must

take the opportunity to recognize the tragedy of the events

described herein. There can be no greater loss than the death

of a child at the very moment of birth. The emotion present

during this hearing was palpable , affecting participants and

observers alike. However , it is not within the jurisdiction of

the undersigned to mete out ÐjusticeÑ or offer equity. There is

nothing that can be done through this proceeding to ease the

unfathomable pain experienced by the parents , or the second

guessing and regret that must surely weigh on each of the

healthcare providers involved, including R espondent. No one can

be made whole. The only duty of the undersigned is to

dispassionately review the evidence and determine whether the

D epartment has proven , with the requ isite standard of proof , the

specific allegations set forth in the A dministrative C omplaint.

The undersigned commits to the performance of that duty.

On March 9, 2018, Department of Health (Petitioner or

Department), filed an Administrative Complaint aga inst

Respondent, Cynthia L. Denbow, an A dvanced R egistered N urse

P ractitioner (ARNP) certified to practice as a nurse - midwife

(CNM). The complaint charged Respondent with violating sections

464.018(1)(n), 464.018(1)(h), and 456.072(1)(m), Florida

Statutes , and Florida Administrative Code Rule 64B9 - 8.005(1) .

On March 20, 2018, Respondent filed an Election of Rights

in which she disputed the allegations contained in the

Administrative Complaint and requested a formal administrative

hearing.

On May 7, 2018, the Election of Rights was referred to the

Division of Administrative Hearings. The final hearing was

scheduled for July 12, 2018. Pursuant to an Unopposed Motion

for Continuance, the final hea ring was rescheduled for

August 28, 2018. An additional day for the hearing was

subsequently added and the hearing was scheduled for August 27

and 28, 2018.

On August 21, 2018, the parties filed their Joint

Prehearing Stipulation (JPS), which contained 45 stipulated

facts. Those facts have been incorporated in t his Proposed

Recommended Or der. The JPS also contained 10 stipulations

regarding issues of law on which there was agreement. Those

stipulations, which are determined to accurately set forth

applicable issues of law, are incorporated in this Proposed

Reco mmended Order.

The final hearing was c onvened on August 27, 2018.

At hearing, Joint Exhibits 1 through 20 were admitted into

evidence. Petitioner offered the testimony of F.R. , the father

of the deceased child ; Jenny Hernandez ; A.R. , the mother of the

d eceased child ; Joanna Mitrega, who was accepted as an expert in

labor and delivery; and Lisa Plano, M.D. Petitioner also

offered the testimony of Jennifer Seaton, M.D., via deposition

in lieu of live testimony. The use of Dr. SeatonÓs deposition

was stip ulated by the parties, and the deposition will be

considered and given weight as though Dr. Seaton testified in

person at the final hearing. PetitionerÓs Exhibits 1 , 3a ,

and 3 b were received in evidence. Respondent testified on her

own behalf and offe red the testimony of Penny Lane, D.N.P., who

was accepted as an expert in midwifery; Jessica Williamson ;

Kathryn Williams; Christy Shields ; and Kaleen Richards, ARNP ,

who was accepted as an expert in standards of care for nurse

midwives in Florida. Respon dentÓs Exhibits 1, 4, 6, 23, and 24

were received in evidence. Petitioner also offered the

testimony of Janet Fuller , R.N., via deposition in lieu of live

testimony. The use of Ms. FullerÓs deposition was received in

evidence over an objection of relevance. T he deposition will be

considered as though Ms. Fuller testified in person at the final

hearing and, as with all evidence, will be given the weight that

it warrants .

The four - volume final hearing Transcript was filed on

September 25, 2018. Dr . SeatonÓs deposition testimony was

separately filed on September 27, 2018. The record was closed

on September 28, 2018, and the parties were instructed to file

their Proposed Recommended Orders by October 17, 2018. Both

parties timely filed Proposed Rec ommended Orders.

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to warrant

discipline. See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Flo rida Statutes (2017), unless otherwise noted.

FINDINGS OF FACT

1. The Department of Health, through its Board of Nursing,

is the state agency charged with regulating the practice of

nursing in the state of Florida, pursuant to section 20.43 and

chapters 456 and 464, Florida Statutes.

2. At all times material to this proceeding, Cynthia L.

Denbow was a licensed A RNP in the s tate of Florida, holding

license number ARNP 9283016 . Prior to the instant case,

Respondent has never had a complaint or discipline against her

Florida R egistered Nurse or ARNP licenses.

3 . Respondent has been certified by the American College

of Nurse Midwives (ACNM) to practice as a CNM since 2006 .

Section 464.012(1)(a) provides that to be licensed as an ARNP, a

nurse must be lic ensed to practice professional nursing and hold

certification from an appropriate specialty board. Florida

Administrative Code Rule 64B9 - 4.002(1)(b) provides that the A CNM

is one of the specialty boards recognized by the Board of

Nursing.

4 . Respondent , as a nurse - midwife, is not regulated under

chapter 467, Florida Statutes, whic h governs Ðlicensed midwivesÑ

in Florida.

5 . Respondent was the owner/operator of Gentle Birth

Options (GBO), a birth center located at 296 Bayshore Drive,

Niceville, Florida 32578.

6 . At GBO, Respondent offered midwifery services, which

included prenatal care, child birth education classes, and labor

and delivery medical support.

7 . In 2017, Respondent provided midwifery services to

A.R., a 36 - year - old female patient who was pregnant with her

first child. Prior to becoming a client at GBO, A.R. and her

husband, F.R., attended an open house at GBO designed to

introduce prospective clients to the concepts of informed

consent, and how the birthing center differs from the med ical

model of care. They then selected Respondent as the medical

provider to guide them during their pregnancy, to provide

one - on - one care to them during labor and delivery, and to make

decisions to facilitate the birthing process.

8 . As a client of GBO, A.R. signed an informed consent

form entitled: ÐConsent to Deliver in a Birth CenterÑ

documenting the date at June 16, 2017. The informed consent

documents provided that no matter the quality of care , there

remained a possibility of u nforeseen events resulting in a poor

labor outcome. The forms also informed A.R and F.R. that the

midwife would transfer the laboring mother to the hospital if

the course of labor was outside her scope of care .

9 . The informed consent forms also provide d that , whenever

possible , decisions regarding transfers would be made jointly by

the laboring mother, the father, and the midwife. However, it

warned that situations may arise where the midwifeÓs decisions

and judgements must be trusted.

10 . During the course of the pregnancy, A.R. and F.R.

attended prenatal appointments and child birth education classes

at GBO. A.R. attended all the provided classes at GBO, while

F.R. attended four to six classes.

11 . The classes provided at GBO were taught by eithe r

Respondent or her assistant , Christy Shields. The classes

c overed topics including : shared decision - making, reasons for

transfer from GBO to the hospital, what to do when the client

begins labor, and the role of the father during and after

pregnancy.

12 . Breech presentation was discussed in the prenatal

classes. However, transfer during labor due to breech

presentation was not discussed, as GBO deals only with unplanned

breech deliveries.

13 . GBO clients were taught not to count contractions, as

they are an unreliable indicator of labor progression.

14 . GBO clients were provided materials indicating that

the Fort Walton Beach Medical Center (FWB) performed an

unreasonably high number of cesarean sections per year. That

information influenced A.R. and F.R.Ós negative feelings toward

giving birth at FWB.

15 . Two months prior to the delivery date , A.R. and F.R.

chose a birth plan that expressed a preference for limited

vaginal exams, and a vaginal birth as opposed to a cesarean

section. The birth plan preferences did not mean A.R and F.R.

were opposed to vaginal exams prior to delivery, or delivery via

cesarean section , if medically necessary. Both A.R. and F.R.

assumed Respondent would conduct all medically necessary vaginal

exams and arran ge for a cesarean section , if medically

necessary.

16 . Jenny Hernandez was hired as A.R.Ós doula. A doula is

a professional who attends a birth to provide physical and

emotional support to the mother and father before, during, and

after the birth. The delivery of A.R. and F.R.Ós child was the

first midwife birth attended by Ms. Hernandez, all others in her

experience having been in a hospital with continuous fetal

monitoring.

17 . On the morning of Dec ember 7, 2017, A.R., who was

40 weeks and 4 days pregnant, and 4 days past her due date,

presented at GBO for a routine prenatal appointment.

18 . Respondent preformed a vaginal exam on A.R., and

determined the position of the fetus by placing her hands on

A.R.Ós abdomen. When the exam was completed, Respondent told

A.R . that the fetus was head down (vertex position), and that

A.R. was 50 percent effaced and one centimeter dilated.

Respondent did not perform an ultrasound on A.R. at this

appointment , but did perform Leopold maneuvers which confirmed

the vertex position of the baby. Respondent also informed A.R.

that the baby was resting on her pelvis. Respondent gave A.R. a

sash and some exercises designed to fix the fetusÓs position

before sending her to the chiropractor.

19 . The position of a f etus can change from vertex to

breech at any time, including up to the very time of delivery.

20 . After the appointment A.R. and F.R. retuned home.

Before 4:00 p.m., A.R. began feeling pains and felt she was

experiencing the signs of early labor. At 3:56 p.m., A.R.

called RespondentÓs number, which was given out specifically for

client s going into labor. Respondent did not answer. A.R. then

called GBOÓs front desk and was informed by Ms. Williamson that

Respondent was unavailable. A.R. informed Ms. Williamson that

she believed she was going into labor and was feeling crampy.

21 . Respondent was unable to take A.R.Ós call because she

was in the birthing suite assisting in another birth. When

informed about the A.R.Ós call, she believed it to be a Ðheads

up call , Ñ a common occurrence at GBO where expecting mothers

call in to allow GBO to prepare for the impending birth. She

also believed that the cramping could be related to the vaginal

examination performed that morning.

22 . At 4:00 p.m. on December 7, 2017, A.R. texted her

doula, Ms. Hernandez, and said ÐHey Jenny, I think I might be in

early labor, just FYI. I'll contact you in a little bit if I go

into active labor, thanksÑ

23 . At 6:49 p.m., Respondent inquire d into A.R.Ós

condition , t exting ÐHow are you.Ñ A.R. replied ÐDoing well.

Pressure waves getting a bit more intense, so took a hot shower.

Making groaning cake with mom now.Ñ A groaning cake is an

intricate cake with lots of ingredients designed to take one Ó s

mind off of the pain s of early labor.

24 . Around 9:00 p.m., A.R. began feeling stronger

contractions. F.R. called Respondent at 9:07 p.m. to give a

labor update and report the rupture of A.R.Ós membranes.

Respondent assured F.R. that the labor was progressing normally

and did not provide any other guidance. F.R. informed

Respondent that he would call back when the labor progressed

further. At roughly tha t time, A.R.Ós birth doula,

Ms. Hernandez, was called to come to their home.

25 . F.R. called Respondent at 9:39 p.m. to give a labor

update and to inquire as to whether it was the appropriate time

to come t o GBO. Respondent replied that this was a normal labor

progression and to wait for the doula to arrive before coming

in.

26 . By the time Ms. Hernand ez arrived at A.R.Ós home,

A.R. had begun to vomit and release a pink discharge. A.R.Ós

contractions were two to three minutes apart, and very intense.

27 . Based on the symptoms displayed by A.R., and the

estimated time between contractions, Ms. Hernandez believed that

A.R. was in transition between latent and active labor. The

transitional period is the shortest stage of labor.

28 . The doula and F.R. jointly made the decision that it

was time to take A.R. to the birthing center. F.R. called and

informed Respondent that the birth party would be arriving at

GBO in around 15 minutes.

29 . At no point before reaching the birthing center did

A.R. or F.R. count contractions.

30 . There is conflicting evidence as to whether A.R. was

screaming in pain before heading to GBO. Ms. Hernandez

testified that A.R. was not screaming in pain while at her

house , but rather was working hard, groaning, and exerting

energy , stating that ÐI wouldn't say that she was out of

control. She was working hard and I'd say, in my experience,

she was coping well. Ñ She further testified that A.R. was

screaming only at the end while at GBO , immediately before her

transfer to the hospital as described herein . Ms. HernandezÓs

testimony is accepted .

31 . At 10:35 p.m. , A.R., F.R., Ms. Hernandez, and A.R.Ós

mother arrived at the birthing center and were greeted by the

medical assistant, Katherine Williams. A.R walked into GBO on

her own. Ms. Williams accompanied A.R. to the birthing suite,

and A.R. sat down on the bed.

32 . Ms. WilliamsÓ job as medical assistant at GBO was to

support the midwife during labor. Her duties included checking

a clientÓs vitals upon admission into t he birthing suite,

documenting intrapartum and postpartum records, and comforting

the mother and father during the birthing process.

33 . While it is disputed if Ms. Williams ever performed a

check of vital signs on A.R. upon admission to the birthing

su ite, Ms. Williams testified that she did so, and the

intrapartum records state that Ms. Williams documented A.R.Ós

blood pressure, respiration, temperature, and fetal heart tones.

The report indicates A.R. was coping with contractions at this

time. Ms. W illiamsÓ s testimony and contemporaneous records are

accepted.

34 . Shortly after the birthing party arrived in the suite,

Respondent and Ms. Shields entered the room. Respondent greeted

the party, and observed A.R. in labor, but did not perform any

ph ysical examination. Ms. Shields saw the records of

Ms. WilliamsÓ s vitals check when she entered the birthing suite.

35 . Respondent and her assistants watched and assessed

A.R. in the birthing suite in an attempt to determine what stage

of labor A.R. was in. Ms. Hernandez was massaging A.R.Ós back,

applying counterpressure, and generally offering encouragement.

36 . At 11:15 p.m. , A.R. got up to go to the bathroom. She

returned from the bathroom and sat at the foot of the bed.

Ms. Shields then checked the babyÓs vitals.

37 . A.R. alternated positions from the bed to the birthing

stool and back. Respondent and her assistants continued to

monitor A.R. to determine the stage of labor. At some point ,

Respondent left the room to review materials on stem cell

extraction from the umbilical cord.

38 . F.R. called Respondent back into the birthing suite .

Respondent indicated that A.R. did not seem to be handling the

contractions well, and had begun to vocally express pain and

breath e heavily. A.R. expressed the desire to get into the

birthing tub , at which time Respondent asked A.R. if she would

like her to perform a vaginal exam. A.R. responded in the

affirmative. Respondent conducted the vaginal exam and informed

A.R. she was 100 percent dilate d and completely effaced , but

that the baby was in breech position. Meconium was observed

after the vaginal exam. The parties stipulated that the

examination was performed one hour and seven minutes after A.R.

arrived at GBO, making the time 11:42 p.m.

39 . Respondent informed A.R that it was her decision as to

how to proceed with the breech delivery. Respondent told A.R.

that she had performed unplanned breech deliveries and was

comfortable with undertaking the delivery. Respondent gave A.R.

two choices: give birth at the birthing suite; or give birth at

the hospital where they would likely perform a c e sarean section.

40 . There was conflicting evide nce as to whether

Respondent provided information to A.R. about the options for

safe delivery based on the nature of the delivery and its

imminence. Respondent testified that she informed A.R . that

because the birth may be imminent, it could occur in the

ambulance which can be dangerous due to a lack of available

trained personnel and equipment, a conversation described in the

intrapartum records. Respondent did testify that Ð I did not

quote exactly what I said. I may not have used the word

precipitous, but I told her, your labor is progressing fast, and

that means the same thing. Ñ Ms. Shields went to check the

emergency cart because, to her, Ðit seemed like we were about to

have a baby any second now.Ñ F.R. and Ms. Hernandez testified

that Respondent d id not tell them that the birth was imminent or

precipitous. However, they knew at a minimum that A.R. was

10 centimeters dilated and completely effaced , which would

reasonably suggest that delivery could come quickly -- within

30 minutes according to Ms. Mitrega . F.R., Ms. Hernandez, or

A.R. could not recall Respondent advising that an ambula nce

delivery could be dangerous , but recalled Respondent reiterating

the downside of a FWB delivery . A complete review of the

testimony of each of the witnesses , including GBO staff,

indicates that the differences in the recollection of the

witnesses were not so dissimilar as to suggest that any witness

was intentionally fabricating their testimony. Rather, given

the impact of the situation -- as stated by F.R., Ð all the air

went out of the room Ñ -- the differences in time, tone, and

substance were, more likely than not , an artifact of the stress

and tumult of the moment .

41 . The greater weight of the evidence indicates that

Respondent gave A.R. the option of continuing with the delivery

at GBO or going to FWB. A.R. initially agreed to continue with

the delivery in the birthing suite . As stated by F.R.,

Ð I agreed, let's do this , Ñ a statement reiterated by several

witnesses. To be sure, the decision was influenced by

information provided during birthing classes as to the cesarean

delivery rate at FWB, and by RespondentÓs assurance that she

c ould manage the unplanned breech delivery . Such does not

constitute ÐencouragementÑ as pled in the Administrative

Complaint. Thus, the evidence is not clear and convincing that

Respondent failed to meet the minimal standards of acceptable

and prevailing nursing practice by encourag ing A.R. to continue

delivery at GBO after learning that A.R.Ós fetus was in breech

position , that Respondent engaged in unprofessional conduct as a

result of the circumstances surrounding A.R.'s consent to

c ontinue the delivery at GBO after learning that A.R.Ós fetus

was in breech position , or that Respondent made deceptive and/or

untrue representations in A.R.'s patient records regarding the

decision to continue the delivery at GBO after learning that

A.R.Ós fetus was in breech position .

42 . After A.R. agreed to continue the birth at GBO ,

Respondent had to assess whether the birth was imminent in case

there had to be a decision to transfer to the hospital.

Respondent then allowed A.R. to push, stating that:

I had to determine if the baby was imminent

or not. It was an assessment. She had to

push a few times before I could even decide

if I had a minute to go use the phone and

call -- call 911. The baby could have been

born when I walked out the room. Her labor

was progressing quickly. I had to establish

if birth was imminent.

43 . There is conflicting evidence on the number of

contractions A.R. went through at the birthing center before a

transfer to FWB was initiated by Respondent. A discussion of

the discrepancy and the charting thereof is set forth below.

Regardless of the numbe r of contractions, Ms. Hernandez

indicated that after contractions on the birthing stool ,

Respondent got the fetal Doppler to measure heart tones .

Respondent instructed A.R. to get on the bed on Ð all - fours Ñ to

get a better read on the babyÓs heart rate be cause, as stated by

Ms. Shields, Ð[a] lot of times if it's just the positioning

thing, that will help the baby's heart rate just fine if the

baby didn't like the position. Ñ

44 . Respondent determined that the babyÓs heart tones were

decelerating during contractions , though they recovered to

normal levels thereafter. The second incident of decelerating

heart tones prompted the RespondentÓs decision that this was a

precipitous labor, and that it was time for transfer. 1 /

45 . After the contractions desc ribed above, Respondent

noted the baby was not descending normally , and noticed abnormal

decelerations of the babyÓs heart tones. Respondent told A.R.

to stop pushing at this point . Respondent determined that the

situation was emergent and left the room to call emergency

services for hospital transport. Ms. Shields stayed with A.R.

Ð encouraging her to breathe, [and] trying to discourage her from

pushing if she had another contraction. Ñ Ms. Williams retrieved

the emergency cart and began to administer oxygen to A.R.

46 . Respondent called 911 and asked Ms. Shields to gather

and print A.R.Ós records for delivery to FWB. A.R. and the rest

of her party were led to RespondentÓs office where A.R. laid

down on the couch to await t he arrival of the ambulance .

47 . Respondent approximated the call with 911 took about

five minutes to provide all the information the emergency

operators were asking for. As the call progressed , Responden t

transferred the phone to M s. Williams so Respo ndent could

complete the transfer records for the hospital and check on A.R.

Respondent used the fetal Doppler to check fetal heart tones and

performed an ultrasound to confirm the baby was in breech

position.

48 . When the first responders arrived at GB O and were able

to assume the care of A.R. and prepare her for transport,

approximately 12 minutes after the 911 call was placed,

R espondent called in a report to the Labor & Delivery unit at

F WB . Deborah Wahlman, R.N. , was the charge nurse that answered

the call. Responden t gave a full report to Ms. Wahl man that

included: A.R. was 40 weeks pregnant, complete, breech, and

pushing.

49 . A.R. was transported from GBO to F WB , a distance of

11 miles, via ambulance. Res pondent sat in the back of the

ambulance with A.R., while F.R. sat in the front with the

driver. Upon arrival at FWB, Respondent transferred full

responsibility for the care of A.R. and her fetus to the

hospital in accord with her physician protocols.

50 . It was not disputed, nor was it an issue, that

Respondent correctly performed the steps related to A.R.Ós

transfer to FWB, ensured that pushing efforts were ceased,

encouraged A.R. to breathe, administered oxygen , repositioned

A.R., performed a bedsid e sonogram, and went with A.R. in the

ambulance.

51 . Respondent provided FWB with handwritten and

incomplete intrapartum notes, along with lab reports from A.R.Ós

28th and 36th weeks. These lab reports included CBCÓs, a

glucose tolerance test, and a group beta test strip. She did

not provide the OB labs to the hospital because the birthing

staff lacked the time to obtain them.

52 . A.R. was taken in on a stretcher and admitted to th e

operating room after being asked preliminary health questions by

the hospital staff. Respondent and F.R. were not permitted in

the operating room.

53 . While waiting in the operating room , Respondent and

her staff were completing the notes and forms detailing what

occurred at GBO. Respondent and F.R. disagreed as to the number

of times A.R. pushed at GBO . At the hearing, A.R., F.R., and

the doula testified A.R . went through two to four contractions

on the birthing sto ol. A.R. testified that she had perhaps

three to four contractions on the bed before Respondent made the

decision to go to the hospital. Respondent indicated that she

documents contractions, rather than individual pushes that may

occur during a contracti on. She testified that a patient may

push multiple times during a single contraction. Respondent

testified as to her recollection that A.R. had two contractions

during which she pushed several times before the decision to

transfer her to the hospital wa s made.

54 . When she was charting, Respondent had to estimate how

many pushes A.R. might have had in the 15 frenetic minutes or so

between the discovery that the baby was breech and the call

to 911. She asked Ms. Shields how many pushes she counted, and

she indicated two or three . F.R. disagreed, indicating that

A.R. pushed at least six times. Respondent construed the

statements as meaning there were multiple pushes over two

contractions, and charted it as such , logging Ðattempted to push

x2 contraction s.Ñ 2 / The evidence that Respondent was being

untruthful both at the time she prepared the charts and at the

hearing was not clear and convincing . Thus, the allegation that

Respondent engaged in unprofessional conduct by inaccurately

recording the number of times A.R. pushed after Respondent

learned that the baby was in breech position is not supported by

the applicable quantum of proof .

55 . The fetal heart rate with beats per minute (BPM) in

the 80s was heard by Ms. Wahlman at F WB when A.R. arriv ed via

ambulance , before A.R. was taken to the operating room . The

fetal heart rate with BPM in the 60s was heard when A.R. was in

the operating room.

56 . A.R. underwent an emergency c esarean section surgery

performed by Jennifer Seaton, M.D. Dr. Plano, neona tologist,

was called by the hospital staff to report for neonatal

resuscitation. She arrive d approximately eight minutes after

delivery , and testified that Ðthe baby had had normal heart rate

in the ambulance ride over, but had had a decrease in the heart

rate just prior to delivery and so -- so I proceeded to try to

resuscitate a child that -- that according to the history, might

have had had a heart rate te n minutes before.Ñ

57 . After some time had passed , Dr. Seaton came in to the

waiting room and informed F.R. and Respondent that the outcome

had not been positive, and that A.R. and F.R.Ós child had died.

The child died minutes before birth as estimated by the

pathologist who performed the autopsy . The autopsy report also

documented that the child was diagnosed with cardiomegaly and

myocarditis.

58 . The Department alleged that Respondent misrepresented

to Dr. Seaton whether A.R. pushed while at GBO. D r. Seaton

testified that Respondent Ðstated that she did not ask the

patient A.R. to push.Ñ Respondent testified that the exchange

with Dr. Seaton started when she asked Ð Did you make this

patient push when you knew she was breech? And I said, no,

I did not make her push. She chose to push. She was pushing

spontaneously. Ñ F.R.Ós recollection of the initial exchange

between Respondent and Dr. Seaton differed from both of theirs.

The allegation that Respondent was falsifying information is

undercut furth er by the fact that Respondent advised Ms. Wahlman

that A.R. was breech and pushing when she called in the report

to FWB . Without something further, t he evidence is not clear

and convincing that Respondent made deceptive and/or untrue

representations to D r. Seaton regarding her interactions with

A.R. while at GBO as alleged in Count III of the Administrative

Complaint .

59 . RespondentÓs notes go up to 2:00 a.m. on December 8,

2017. Respondent testified that all of the notes were completed

during the period at GBO, in the FWB waiting room, or shortly

thereafter on December 8, 2017 , when she was able to sit down at

her computer and r ecollect the events as they happened. The

electroni c signature of December 19, 2017, was a result of

Respondent leaving t he record open to confirm her recollection

of the time she called for the EMS was c onsistent with their

records. The evidence is not clear and convincing that

Respondent , or anyone on the GBO staff, modified her records on

December 19, 2017, or that she m ade deceptive and/or untrue

representations in A.R.'s patient records as a lleged in

Counts II and III of the Administrative Complaint .

Standards of Care

60 . It is not the individual opinion of a qualified

witness that establish es the standards of acceptable and

prevailing nursing practice. Rather, it is Ðcommunity

standardsÑ that define the appropriate standard of care.

61 . In order to establish the standard of care applicable

to nurse midwives, Petitioner relied on the testimo ny of Joanne

Mitrega, who was accepted as an expert in labor and delivery.

Ms. Mitrega has been a C NM in Florida since 2001 . Although she

Ðcame to Florida to join a birth center, a freestanding birth

center,Ñ her primary p ractic e since then has been i n a hospital

setting or a private practice setting with two OB/GYNs. The

last time Ms. Mitrega worked at a birth center was in 2002 , and

even that center was owned and operated by a hospital .

62 . Ms. Mitrega indicated that , when asked to develop an

opinion regarding standards of c are for CNM s :

I had reviewed my own practice guidelines

from my birth center, at which I used to

practice and current practice guidelines,

yes.

Q And the guidelines from your birth

center, are those the same guidelines that

Ms. Denbow would be required to follow?

A No. Every place has their own set of

practice guidelines.

63 . Ms. Mitrega further testified that the standard of

care is established through a practiceÓs operating guidelines

and protocols , stating that:

Every place I've practiced I had Standards

of Care, I had guidelines, practice

guidelines, which is the Standards of Care,

and they were always provided to me by my

group.

64 . Confirming Ms. MitregaÓs testimony as to the basis for

an applicable standard of ca re , Ms. Richards stated that Ðin the

State of Florida, a nurse midwife has protocols that are signed

off by a physician and that's really kind of her governing body,

like what she needs to follow.Ñ

65 . When asked the basis for her opinion as to Ðthe

Stan dards of Care that are within the community , Ñ particularly

as it relates to a vaginal examination upon presentment at a

birth center, Ms. Mitrega responded that they were derived from

Ð within the community and establishments I have been a part of. Ñ

As ind icated previously, the community and establishments with

which Ms. Mitrega has recent experience include only hosp ital or

hospital affiliated facilities. They do not include home birth

or birthing centers similar to GBO.

66 . Ms. Mitrega testified that Ðeverywhere I practiced

there was a set of practice guidelines under which I had to

practice and be compliant with.Ñ Nonetheless, Ms. Mitrega did

not review the protocols in place at GBO. Despite her testimony

that every fac ility has their own set of practice guidelines and

their own approved relationship with a physician in the form of

signed protocols, her testimony as to standard of care was based

on protocols established at her places of employment. As will

be discussed herein, in light of Ms. MitregaÓs credible

testimony as to the basis for a practionerÓs standard of care,

her failure to review Respondent and GBOÓs operating practices

and protocols diminishes the credibility and weight of her

testimony that Respondent vi olated her applicable standard of

care. Furthermore, Ms. Mitrega did not, with any degree of

specificity, rely on sources she identified and acknowledged as

authoritative as support for her opinions.

67 . Dr. Lane was accepted as an expert in midwifery. She

is a certified nurse midwife , and specializes in home birth,

outcomes in home birth and birth center deliveries, and vaginal

breech deliveries. She has never practiced midwifery in

Florida , but is familiar with community standards of midwifery

in Florida, having taught midwifery classes in Destin, worked

with community representatives in Florida, and reviewed the

Nurse Practice Act. She was a co - author for the Home Birth

Standards published by the ACNM, of whic h she is a member of the

Home Birth Section and the committee for Full Practice Standards

for Nurse Midwives . Ms. Mitrega recognized ACNM c linical

bulletins and physician statements as being authoritative in the

field of midwifery. Ms. Mitrega further re cognized the ACNM, as

the governing body for midwives, as Ðvery influential in

establishing the guidelines for us.Ñ

68 . Dr. Lane reviewed the intrapartum records, birth plan,

prenatal records, lab reports , and all other documents at issue

in this case , along with the written complaint. Of critical

importance is the fact that she reviewed RespondentÓs

collaboration agreement with her associated physician, and ,

thus , had a familiarity with the standard of care that would

apply to Respondent.

69 . Dr. Lane knew Respondent prior to being asked to offer

opinion testimony in this case. They were in school together,

and Dr. Lane considered themselves to be friends. That, in

itself, is not sufficient to demonstrate bias, and is not a

reason to discount Dr. LaneÓs sworn testimony .

70 . Ms. Richards was accepted as an expert in the Florida

Standards for Nurse Midwifery. Ms. Richards is a nurse midwife

who has been practicing in Central Florida since 2006. She owns

a company providing midwifery care in cluding prenatal, delivery ,

and postpartum care. Ms. Richards has practiced midwifery in a

variety of setting s, including both birth centers and hospitals.

Vaginal Examination

71 . Ms. Mitrega identified four stages of labor, with the

Ðsecond stageÑ being from complete dilation to delivery. The

second stage for a first - time mother can be from three hours to

as few as 30 minutes, with a mean of 50 minutes. B y watching

and listening to a patient , a midwife can Ð get an idea abou t

what stage of labor she's in , . . . but if I don't

do my pelvic exam, I am only guessing .Ñ Therefore, in the

hospital setting at which Ms. Mitrega practices , she per form s an

initial vaginal exam upon the patient arriving to establish a

baseline .

72 . W hen asked when nurse midwives should perform their

initial assessment and vaginal e xam upon patient admittance ,

Ms. Mitrega testified:

Again, if I'm admitting a patient, I've got

to have all my information so I know what

diagnosis to put and I know my plan for the

patient.

Q. Was that the standard when you were at

the birth center?

A. Yes.

Q. That's the standard at the hospital?

A. Yes. An initial assessment of a

patient, including vaginal exam, was a part

of any practice I have been part of .

(e mphasis added) .

As previously indicated, Ms. MitregaÓs practice for the 17 years

she has been in Florida has been limited to hospital or

hospital - affiliated facilities. She has no recent experience in

home birth or birthing centers similar to GBO.

73 . Ms. Mitrega acknowledged the increased risk of

infection and chorioamnionitis resulting from vaginal exams

after the patientÓs water breaks. Thus, Ðwhen the patient is

ruptured, the membranes are ruptured, we tend to be mindful of

how many vaginal exams we perform.Ñ Dr. Lane corroborated that

when a patientÓs water has broken , vaginal exam inations increase

the possibility of infection, and opined that they should only

be administered when there may need to be a change in

management.

74 . RespondentÓs operating protocols, and her agreement

with A.R., establish that vaginal examinations were to be done

minimally. Respondent indicated that A.R. Ó s delivery appeared

to be progressing normally . Given that a vaginal exam had been

performed t he morning of December 7, 2017, Respondent did not

believe another to be necessary, or within the general Ðnon -

invasiveÑ practice reg i m e n of a midwife. I t was not until A.R.

appeared to be having difficulty handling the contractions ,

combined with her des ire to get into the birthing tub, that a

vaginal examination was determined to be warranted.

75 . Dr. Lane and Ms. Richards, appearing on behalf of

Respondent, opined that Respondent did not fall short of the

minimum standard of care in performing a vagin al exam after one

hour of observation.

76 . Dr. Lane testified that the practice of midwifery

relies in large measure on non - invasive means of assessing the

progress of labor. Thus, discussion and observation are within

the standard of care in the abse nce of some sign of distress or

complication.

77 . Dr. Lane testified that A.R.Ós need to push so soon

into her active labor could be taken as a sign of precipitous

labor that could change management and , therefore , warrant a

vaginal exam . Thus, Respondent Ó s administration of the vaginal

exam after one hour of observation and assessment , and after

A.R. began to vocally express pain and breath heavily , was

appropriate based on the signs displayed by A.R.

78 . Given the totality of the evidence in this case,

including the testimony of Dr. Lane and Ms. Richards , Petitioner

did not prove, by clear and convincing evidence, that Respondent

fell below the minimum standards of care applicable to nurse

midwives when she waited to perform a vaginal examinat ion , or

that Respondent acted inconsistently wi th GBOÓs policies and

physician - approved protocols when she did so , as alleged in

Count I of the Administrative Complaint . 3 /

Breech Birth /Attempt at Delivery

79 . Ms. Mitrega testified a breech baby can be delivered

vaginally by Ða skilled, trained provider who is trained in

doing breech vaginal deliveries or in emergency -- in

emergencies, or under an emergency situation.Ñ

80 . When asked her opinion as to the standard of care for

nurse midwives upon discovery of a breech birth, Ms. Mitrega

testified:

Under my practice guidelines and the birth

center, as soon as I diagnose by my

guidelines , as soon as I diagnose breech, I

had to transfer the patients to physicians

to the hospital under physician's car e.

(emphasis added) .

81 . As indicated previously, Ms. MitregaÓs guidelines as a

midwife member of a hospital staff, is not the standard of care

for nurse midwives practicing in a free - standing birthing

center, unaffiliated with a hospital.

82 . In addition to the foregoing, which indicates a lack

of knowledge as to the standard of care for midwives other than

those operating under her practice guidelines, the force of

Ms. MitregaÓs testimony as to whether the standard of care was

violated by Resp ondent in this case was effectively extinguished

by the following:

Q . . . . Couldn't a skilled nurse midwife

who trained in breech deliveries be able to

deliver a breech if it was imminent?

A . If she's trained in doing so and her

protocols allowing her to do so, yes.

Q . Well, that was the situation here,

wasn't it?

A . I don't know.

Q . Why don't you know?

A . I don't know the protocols. I don't know

if the midwife was trained in breech vaginal

deliveries and her protocols were

corresponding with th at.

Q . Well, that was a missing component that

was important, wasn't it?

A . Yes.

83 . Ms. Mitrega admitted, on several oc c asions, that she

did not review GBOÓs protocols and practice guidelines. Such an

astonishing omission of such a critical elemen t serves, in large

measure, to decrease the weight to be afforded the witnessÓ

testimony to near zero.

84 . Ms. Mitrega was unable to identify a guideline or

standard providing that a skilled and trained midwife should not

attempt to deliver a breeched baby vaginally if birth was

imminent. She had no knowledge of the standard of care required

to determine if a breech birth was imminent, or how many pushes

are necessary to conduct an assessment on the imminence of a

breech birth.

85 . In the course of her testimony, Ms. Mitrega admitted

that if Respondent was trained in breech vaginal delivery, then

it would be her opinion that A.R. would not have to be

transferred immediately.

86 . Respondent testified that she has experience and

training in deliverin g breech babies, though she has only

delivered one breech baby at GBO, in 2017. There was no

evidence to contradict her testimony.

87 . GBOÓs policies and procedures provide that a patient

presenting with a breech presentation is to be transferred to a

h ospital Ð if there is time for transport before birth. Ñ

However, Respondent and GBO staff will manage the breech birth

in the event the patient presents too late for transport.

88 . Dr. Lane and Ms. Richards, appearing on behalf of

Respondent, opined that Respondent did not fall short of the

minimum standards of care in asking A.R. to push once breech

delivery was discovered, or faili ng to immediately transfer

A.R. once breech delivery was discovered.

89 . Dr. Lane testified that the goal of a midwife is to

determine a safe environment for birth , and noted that certified

nurse midwives are trained in how to manage surprise breech

delivery . The GBO informed consent forms authorized Respondent

to manage complications.

90 . Ms. Richards testified that cer tified nurse midwives

are required to have their protocols signed off on by a

physician. Respondent had done so . RespondentÓs protocols

authorized Respondent to deliver a baby if birth was imminent in

a surprise breech birth , and she acted in accord with the

required protocols.

91 . Dr. Lane testified that, b ased on the potential danger

to the mother and child from giving birth in an ambulance , the

most prudent course of action in this case was for Respondent to

determine how quickl y A.R. was expected to give birth .

92 . A s to whether Respondent asking A.R. to push after the

breech was identified violated the standard of care , Dr. Lane

concluded that allowing A.R. to push over the course of roughly

15 minutes informed Respondent a s to how fast the birth would

likely occur , allowing her to make an informed choice as to the

safest birthing environment. Dr. Lane further concluded that

Respondent Ó s assessment to determine that birth was not im minent

prior to transfer , including the observations of contractions

and measurement of fetal heart tones, was reasonable and

necessary . Based thereon, Dr. Lane opined that Respondent did

not breach the standard of care by failing to immediately refer

A.R. to a higher level of care when bre ech was diagnosed.

93 . Based on the totality of the evidence in this case,

Petitioner did not prove, by clear and convincing evidence, that

Respondent fell below the minimum standards of care applicable

to nurse midwives when she failed to immediately refer A.R. to a

higher level of care, or when she allowed A.R. to push through

several contractions to assess the imminence of birth before

effecting a transfer, as alleged in Count I of the

A dministrative Complaint.

R ecordkeeping

94 . As to the recordkeeping required of a nurse/midwife,

Ms. Mitrega testified that late entry notes on intrapartum

records are an acceptable practice, unless the charting is done

at a much later date.

95 . Respondent testified that her birth assistant

incorrectly ch arted the pre - transfer heart rate decelerations on

the intrapartum record because she was not properly trained to

diagnose or document the decelerations. Respondent testified

she later charted the correct documentation in her Subjective

Objective Assessme nt Plan.

96 . Ms. Mitrega testified that, in general, RespondentÓs

records were legible and accurate. Her testimony to that

effect, and her belief that the entry bearing a signed date of

December 19, 2017, was not, is as follows:

Q . . . . You said that her records were

done appropriately and legibly; correct?

A . Right.

Q . Prenatal records show the patient's care

was documented properly, subject followed

standard charts and way of charting to

maintain records; correct?

A . As far as the flow charts g o, and as far

as what I can see, yes, I have to agree that

they were filled according to the rubrics.

Q . Okay. And she had appropriate blood

work and cultures down at the appropriate

time for the standard of care?

A . Yes. Yes.

Q . Intrapartum records and intrapartum flow

chart were filled out completely, timely and

according to rubric?

A . Yes.

Q . And second stage documentation calls for

entry every 5 minutes?

A . Uh - huh.

Q . And you see that was documented, as

well?

A . Yes. I do say, again, according to what

they use at the center, it is filled out

correctly, yes.

Q . And that late entry note is an

acceptable practice; is that right?

A . Right. And I was referring to the note

that was done at the hospital, when the

patient arrived t o the hospital, and I do

say late entry note is acceptable. We do

take care of patients and patients do come

first and then we chart, when we find the

next available moment. But when I was

reviewing the case again, I did see that

there was a really late entry note, the

events were happening on December 7th, and

there was a note from the December 19th.

Q . Where are those ?

A . If I recall, again, reviewing the case,

it was page 153.

Q . Could that have been the page -- could

that have been the date that it was signed?

A . It was electronically signed but how do

you sign a record if you don't enter the

record?

Q . It could be left unsigned; right?

A . Right . But, to me, the record was

redone, rewritten. (emphasis added).

97 . Respondent testified, credibly, that the electroni c

signature of December 19, 2017, was a result of her leaving the

record open to confirm her recollection of the time she called

for the EMS . She testified, without any evidence to the

contrary, that sh e did not alter A.R.Ós records after she

initially prepared them on December 8, 2017. Ms. MitregaÓs

testimony that the record was Ðredone, rewrittenÑ was pure

speculation, unsupported by competent, substantial evidence.

98 . For the reasons set forth h erein, t he evidence is not

clear and convincing that Respondent, or anyone on the GBO

staff, modified A.R.Ós records on December 19, 2017, that the

records kept and produced were materially inaccurate, or that

R espondent made deceptive and/or untrue repres entations either

to Dr. Seaton or in A.R.'s patient records.

C ONCLUSIONS OF LAW

A. Jurisdiction

99 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding . §§ 4 56.073 ( 5 ), 120. 569 , and 120.57(1) , Fl a.

Stat. (201 8 ) .

100 . The Department has authority to investigate and file

administrative complaints charging violations of the laws

governing the practice of nursing . § 456.07 3 , Fla. Stat.

B. Standards

101 . Section 467.003, Florida Statutes, defines Ðc ertified

nurse midwifeÑ as Ð a person who is licensed as an advanced

registered nurse practitioner under part I of chapter 464 and

who is certified to practice midwifery by the American College

of Nurse Midwives. Ñ Respondent is a certif ied nurse midwife.

102 . Section 4 64 .01 8 , Florida Statutes , provide d , in

pertinent part, that:

(1) The following acts constitute grounds

for . . . disciplinary action, as specified

in s. 456.072(2) :

* * *

(h) Unprofessional conduct, as defined by

board rule.

* * *

( n ) Failing to meet minimal standards of

acceptable and prevailing nursing practice,

including engaging in acts for which the

licensee is not qualified by training or

experience .

103 . Section 456. 072 provide d , in pertinent part, that:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

( m ) Making deceptive, untrue, or fraudulent

representations in or related to the

practice of a profession or employ ing a

trick or scheme in or related to the

practice of a profession.

104 . Rule 64B9 - 8.005 provides that ÐUnprofessional conduct

shall include: (1) Inaccurate recording .Ñ

105 . The standards of acceptable and prevailing nursing

practice are not established by statute or rule.

106 . Section 464.012(3) provides that:

An advanced registered nurse practitioner

shall perform those functions authorized in

this section within the framework of an

established protocol which must be

maintained on site at the location or

locations at which an advanced registered

nurse practitioner practices. In the case

of multiple supervising physicians in the

same group, an advanced registered nurse

practitioner must enter into a supervisory

protocol with at least one ph ysician within

the physician group practice.

107 . While the protocols establish the framework in which

an ARNP is permitted to practice, community standards define the

standards of acceptable and prevailing nursing practice.

C. Burden and Standard of Proof

108 . The D epartment bears the burden of proving the

specific allegations that support the charges alleged in the

Administrative Complaint by clear and convincing evidence.

DepÓt of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne

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

510 So. 2d 292 (Fla. 1987); Fox v. Dep't of Health , 994 So. 2d

416 (Fla. 1st DCA 2008); Pou v. DepÓt of Ins. & Treasurer ,

707 So. 2d 941 (Fla. 3d DCA 1998).

109 . Clear and convincing evidence Ðrequires mo re proof

than a Òpreponderance of the evidenceÓ but less than Òbeyond and

to the exclusion of a reasonable doubt.ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

evidence level of proof :

[E]ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses must

be clear and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact without

hesitancy.

Clear 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. T he 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.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

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

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous. " Westinghouse Elec . Corp. v. Shuler Bros. , 590 So.

2d 986, 989 (Fla. 1st DCA 1991).

110 . A proceeding to suspend, revoke, or impose other

discipline upon a license is penal in nature. State ex rel.

Vining v. Fla. Real Estate Comm'n , 281 So. 2d 487, 49 1

(Fla. 1973). Penal statutes must be construed in terms of their

literal meaning , and words used by the Legislature may not be

expanded to broaden the application of such statutes. Thus, the

provisions of law upon which this disciplinary action has been

brought must be strictly construed, with any ambiguity construed

against Petitioner. Elmariah v. DepÓt of Bus. & ProfÓl Reg. ,

574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v.

Fish & Wildlife Conserv. Comm'n , 57 So. 3d 929, 931 (Fla. 1st

DCA 2011); Beckett v. DepÓt of Fin. Servs. , 982 So. 2d 94, 100

(Fla. 1st DCA 2008); Whitaker v. DepÓt of Ins. , 680 So. 2d 528,

531 (Fla. 1st DCA 1996); Dyer v. DepÓt of Ins. & Treasurer ,

585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

111 . The allegations of fact set forth in the

Administrative Complaint are the grounds upon which this

proceeding is predicated. Trevisani v. DepÓt of Health ,

908 So. 2d 1108, 1109 (Fla. 1st DCA 2005); see also Cottrill v.

Dep Ót of Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus,

the scope of this proceeding is properly restricted to those

matters. M.H. v. DepÓt of Child. & Fam. Servs. , 977 So. 2d 755,

763 (Fla. 2d DCA 2008).

D . Analysis

112 . Whether a particular standard of care has b een

violated is not dependent upon a medical outcome. An outcome

can be positive when there has been a violation of a standard of

care, just as an outcome can be negative when all standards of

care have been m et. The undersigned is mindful of the tragedy

of this case. It stayed at the forefront as the testimony and

evidence were carefully weighed. Nonetheless, the conclusions

drawn here are based solely on the credible and supported record

evidence of the po licies, protocols, and standards of care

applicable to and applied by Respondent.

Count I

11 3 . Count I of the Administrative Complaint alleges that

Respondent violated section 464.018(1)(n) as follows :

Respondent failed to meet the minimal

standards of acceptable and prevailing

nursing practice in one or more of the

following ways:

a. By failing to promptly perform a vaginal

examination on Patient A.R. when Patient

A.R. presented to GBO in active labor;

b. By failing to immediately refer Patient

A.R. to a higher level of care, including a

hospital, when Respondent learned F.R was in

breech position; and/or

c. By encouraging Patient A.R. to continue

the delivery at GBO after learning F.R. was

in breech position.

11 4 . As indicated above, the bu rden on the Department to

prove the allegations of the Administrative Complaint is fairly

high. In light of the Findings of F act set forth herein, and

the complete record, the evidence adduced in this case was not

clear and convincing that Respondent viol ated an applicable and

proven standard of care by : failing to immediately perform a

vaginal examination of A.R. upon her presentation at GBO ;

failing to immediately refer A.R. to a higher level of care when

it was discovered that the child was in breech position; or by

having A.R. continue the delivery at GBO , including allowing her

to push to determine whether birth was imminent. The testimony

of Ms. Mitrega was simply not persuasive due to her inexplicable

failure to review RespondentÓs pract ice guidelines, policies,

and protocols , and was outweighed by th at of Dr. Lane and Ms.

Richards, who did review RespondentÓs practice guidelines,

policies, and protocols and were able to convincingly correlate

them to generally applicable and recognized n ursing standards .

Thus, Petitioner failed to prove , by clear and convincing

evidence , that Respondent violated section 4 64.018 (1)( n ) , as

alleged in Count I of the Administrative Complaint.

Count II

11 5 . Count II of the A dministrative Complaint alleges that

Respondent violated section 464.018(1)(h) and rule 64 B9 - 8.005(1)

as follows :

Respondent engaged in unprofessional conduct

by inaccurately recording the following

details related to Patient A.R.'s delivery:

a. The circumstances surrounding Patient

A .R.'s consent to continue the delivery of

[the child] at GBO; and/or

b. The number of times Patient A.R. pushed

after Respondent learned that [the child]

was in breech position.

11 6 . In light of the Findings of F act set forth herein,

and the complete record, the evidence adduced in this case was

not clear and convincing that Respondent inaccurately recorded :

t he circumstances of the decision to continue the delivery of

the child at GBO when it was discovered that the child was in

breech position ; or t he number of times A.R. pushed after

Respondent learned that the child was in breech position . Thus,

Petitioner failed to prove, by clear and convincing evidence,

that Respondent violated section 464.018(1)(h) and rule 64B9 -

8.005(1) , as alleged in Count I I of the Administrative

Complaint.

Count III

11 7 . Count I I I of the Administrative Complaint alleges

that Respondent violated section 4 56.072 (1)( m ) as follows :

Respondent made deceptive, untrue, or

fraudulent representations in or related to

the practice of her profession in one or

more of the following ways:

a. By making the deceptive and/or untrue

representation that she did not instruct

Patient A.R. to push after learning that

F.R. was in breech position; and/or

b. By including deceptive and/or untr ue

representations in Patient A.R.'s patient

records.

11 8 . In light of the Findings of F act set forth herein,

and the complete record, the evidence adduced in this case was

not clear and convincing that Respondent made deceptive, untrue,

or fraudulent r epresentations : to Dr. Seaton regarding the

number of times A.R. pushed after Respondent learned that the

child was in breech position ; or otherwise in A.R.Ós patient

records . Thus, Petitioner failed to prove, by clear and

convincing evidence, that Respo ndent violated section

456.072(1)(m) , as alleged in Count I I I of the Administrative

Complaint.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Nursing , enter a final order DISMISSING the Administrative

Complaint against Cynthia Denbow, ARNP .

DONE AND ENTERED this 26th day of December, 2018 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of December, 2018 .

ENDNOTES

1 / Oddly enoug h, Ms. Mitrega had no concern with the

decelerations noted by Respondent that warranted A.R.Ós

transfer , testifying as follows:

All right. So page 3 of 8, what I see is

this, at time -- this is the times 2357,

fetal heart tones noted to decelerate to

80 with recovery to 120 while pushing with

contractions. Assisted to hands and knees

position at this time, and continuously

on 0002, fetal heart tones were compared to

maternal pause. So, if I read that, fetal

heart tones noted to decrease to 80 with

r ecovery to 120 while pushing with

contractions, that's not an abnormal

occurrence, and if we are talking about

nonreassuring, to me, that doesn't

constitute a nonreassuring fetal heart rate

safe, that would be more like an early

deceleration. There are va rious types of

decelerations. And this deceleration goes

to 80, with recovery to 120 while pushing.

So it's telling me that this exactly

corresponds with the contractions. And

deceleration that corresponds with the

contraction is nothing but an early

dec eleration, which is not a nonreassuring.

Q . In any of the documentation in the

intrapartum flow record, were any of the

documented heart rates what you would

consider nonreassuring?

A . No.

2 / The DepartmentÓs Proposed Recommended Order characterized the

entry as being that A.R. attempted to push Ð x2 [with]

contractions.Ñ The addition of the non - record ÐwithÑ

fundamentally changes the meaning of the entry, changing the

meaning from A.R. pushi ng over two contractions, consistent with

RespondentÓs testimony, to A.R. pushing two times, which is not

consistent with RespondentÓs testimony.

3 / The Department, in its Proposed Recommended Order, suggested

that, even if a vaginal examination was deemed to be

inappropriate, other methods of physical assessment could have

been employed, including palpation of the abdomen, LeopoldÓs

maneuvers, or ul trasound, making RespondentÓs physical

assessment Ðstill incomplete.Ñ However, a vaginal examination

was the only assessment method pled in the Administrative

Complaint as being required by a standard of care.

COPIES FURNISHED :

Suzanne Suarez Hurley, E squire

Suzanne Suarez Hurley, P.A.

Post Office Box 172474

Tampa, Florida 33672

(eServed)

Kristen M. Summers, Esquire

Sheryl E. Ellis, Esquire

Prosecution Services Unit

Department of Health

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

R. Ryan Rivas, Esquire

Hall Prangel and Schoonveld, LLC

3507 East Frontage Road

Tampa, Florida 33609

(eServed)

Joe Baker, Jr., Executive Director

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin C - 02

Tallahassee, Florida 32399

(eServed)

Jody Bryant Newman, EdD, EdS , Board Chair

Board of Nursing

Department of Health

4052 Bald Cypress Way, Bin D - 02

Tallahassee, Florida 32399

L ouise Wilhite - St Laurent, Interim General Counsel

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

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 file d with the agency that

will issue the Final Order in this case.