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STATE OF FLORIDA DIVISION ADMINISTRATIVE HEARINGS
DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Petitioner,
vs.
M.G., Respondent
Case No. 98-4171C
___________________________________)
RECOMMENDED ORDER Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on January 21, 1999, in Fort Lauderdale, Florida.
APPEARANCES For Petitioner:
Colleen A. Donahue, Esquire Department of Children and Family Services 201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301
For Respondent:
David Gorewitz, Esquire 1990 West New Haven Avenue, Suite 207 Melbourne, Florida 32904
STATEMENT OF THE ISSUE The issue presented is whether the Department's report numbered 97-036049 should be amended or expunged.
PRELIMINARY STATEMENT By correspondence dated August 25, 1998, the Department denied Respondent's request to amend or expunge its report naming her as the perpetrator of neglect of a disabled adult, and Respondent timely requested an evidentiary hearing regarding that denial. This cause was thereafter transferred to the Division of Administrative Hearings to conduct the evidentiary proceeding.
The Department presented the testimony of Joshua A. Perper, M.D.; Francis Mule, R.N.; Mary Thornton Web, R.N.; and Norma Pocock, R.N.
The Respondent testified on her own behalf and presented the testimony of Wilma Hardy and Nelson Ross, R.N.
Additionally, Joint Exhibits numbered 1-10 were admitted in evidence. Both parties submitted proposed recommended orders after the conclusion of the hearing. Those documents have been considered in the entry of this Recommended Order. No transcript of the proceeding was filed.
FINDINGS OF FACT
1. At all times material hereto, Respondent has been a registered nurse licensed to practice in the State of Florida. In December 1996, she was employed at CPC Fort Lauderdale Hospital, a psychiatric treatment facility.
2. In December 1996, Steven Zieba was 45 years of age. He lived in his mother's apartment while she was living in Europe.
3. On December 7, 1996, Zieba voluntarily admitted himself to CPC Fort Lauderdale Hospital, complaining of depression and suicidal ideation. He reported that he had not eaten in twelve days, but he had been drinking juices. He was screened for admission, physically examined, and admitted to the Hospital's rapid stabilization unit. As part of his admitting examination, samples of his blood and urine were taken.
4. On December 9, 1996, his blood and urine samples were picked up by an outside laboratory for testing.
5. On December 10, 1996, Respondent was working on the 7:00 a.m. to 3:00 p.m. shift. Although the usual ratio of nurses and aides to patients was one to two, on that day Respondent had 14 patients to care for with the assistance of one other person. Respondent contacted the director of nursing, requesting assistance in caring for the patients that day, but the director of nursing refused to bring in additional employees and told Respondent to just "deal with it."
6. A urine glucose test is used only to screen for diabetes. If the urine glucose test indicates that a person might be diabetic, a blood glucose test is performed to confirm that possible diagnosis.
7. At approximately 12:30 p.m. on December 10, 1996, a dietitian brought to Respondent's attention that Zieba's urine test results had come back from the lab. Respondent looked at the test results and saw that Zieba's urine glucose level reading was approximately 1,000. She immediately looked for Zieba and saw him in the cafeteria eating and talking to other patients. He looked as though he were doing fine.
8. Respondent knew that a person who was diabetic and whose urine glucose measured only half of Zieba's would be in a coma. Since Zieba was not in a coma and was acting normally, and since Zieba's records reflected he had no history of diabetes, Respondent believed that the urine glucose test result must have been in error. She had had several previous experiences in which some of her psychiatric patients had "spiked" their urine with juice prior to submission. She also knew that if she notified Zieba's physician of the apparently inaccurate urine test result, the physician would tell her to get the confirmatory blood glucose test results and call him back. She knew that a high urine glucose level is not as important as a high blood glucose level because a high urine glucose level signals the need to obtain a blood glucose level.
9. She called the lab at approximately 1:00 p.m. and requested Zieba's blood glucose test results. The lab advised her that they did not have them yet. She called again near the end of her shift and was again advised that the results were not available yet. Throughout Respondent's shift Zieba continued to act normally, i.e., he was walking and talking.
10. When Respondent's shift ended at 3:00 p.m., she advised the nurse replacing her about Zieba's urine glucose test results and told the nurse to keep calling the lab for Zieba's blood glucose test results so the nurse coming on duty could call Zieba's physician and tell him about the tests.
11. The nurse who replaced Respondent at 3:00 p.m. did not telephone the lab or check on Zieba's condition. At about 7:30 p.m., one of the technicians told that nurse that Zieba was not responding to her. The nurse then checked Zieba, and another nurse on duty performed an on-the-spot urine test. When that nurse obtained an extremely high urine glucose reading, a physician was summoned.
12. Zieba was transported to a medical hospital. By the time he arrived there, he was in a diabetic coma. Zieba expired on December 20, 1996, from acute pancreatitis, not diabetes.
13. The day after Zieba went into a diabetic coma, CPC Fort Lauderdale Hospital received the results of his blood glucose test from the outside laboratory.
14. Had medical intervention occurred earlier, Zieba's chance of survival might or might not have been increased.
15. In December 1996, there was no requirement at CPC Fort Lauderdale Hospital or within the nursing profession that nurses coming on duty read the patients' charts. Rather, nurses relied on the report given to them by the nurses going off duty.
16. In December 1996, there was no policy at the outside laboratory which required the lab personnel to call the hospital with "panic level" results from a high urine glucose test. No one from the outside lab notified the hospital that there might be an emergency situation regarding Zieba. Further, the standard in the community at the time was for laboratories to telephone high blood glucose levels, not high urine glucose levels.
17. Respondent is a caring, competent, dedicated, and motivated nurse. Her action or inaction did not cause or contribute to Zieba's condition, his going into a coma, or his ultimate demise.
18. Although the standard of care in the nursing profession dictates that a nurse immediately advise the attending physician when a patient experiences a change in condition, Zieba did not have a change in his condition on December 10, 1996, during Respondent's shift. Respondent did not, accordingly, violate that standard of care.
19. Depression is not a disability.
CONCLUSIONS OF LAW
20. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569 and 120.57(1), Florida Statutes.
21. The Department alleges that Respondent is guilty of neglect of a disabled adult. Section 415.1075(2)(e), Florida Statutes, requires the Department to prove its allegations by a preponderance of the evidence. The Department has failed to meet its burden.
22. Section 415.102(10), Florida Statutes, provides that the term disabled adult . . . means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that substantially restrict the ability to perform the normal activities of daily living. Subsection (20) provides that the word neglect . . . means the failure or omission on the part of the caregiver . . . to provide the care, supervision, and services necessary to maintain the physical and mental health of the disabled adult . . . including, but not limited to . . . medical services, that a prudent person would consider essential for the well-being of a disabled adult . . . . 'Neglect' is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or psychological injury or a substantial risk of death.
23. Although Section 415.1075(2)(e), Florida Statutes, provides that the Department's investigative report, which would normally be considered hearsay, is competent evidence, that statute does not provide that hearsay within the report itself is competent evidence. Accordingly, the testimony which relies solely upon hearsay within the investigative report or which relies upon hearsay obtained from other sources is not sufficient to support a finding of fact. Similarly, although hospital records were stipulated into evidence in this proceeding, there was no stipulation that hearsay within those records would be sufficient to support a finding of fact.
24. With the exclusion of uncorroborated hearsay, the Department has failed to prove that Zieba was a disabled adult within the meaning of the statutory definition. There is no competent evidence in the record in this cause that Zieba was mentally or physically incapacitated due to any developmental disability or due to organic brain damage or due to a mental illness. Although Zieba voluntarily admitted himself to a psychiatric hospital, the evidence reveals that he was depressed, and the Department's own evidence was that depression is not a disability. Further, the Department failed to prove that Zieba suffered from any physical or mental limitation that substantially restricted his ability to perform the activities of daily living. Rather, the evidence is uncontroverted that before Zieba checked himself into the psychiatric hospital, he was living in his mother's apartment while she was absent.
25. Even if the Department had offered competent evidence to prove that Zieba was a disabled person, the Department failed to prove that Respondent neglected him. When Respondent became aware of the elevated urine glucose level test results, she knew that a person with a level half that high would be in a coma. She looked for him and saw that he was engaged in normal activities. She knew that the blood glucose level must be obtained to determine whether Zieba was diabetic. She telephoned the lab twice to obtain that test result so she could advise the physician as to Zieba's condition. When she was unable to obtain that information and her shift was ending, she advised the nurse on the next shift as to the test results and told her to obtain the blood glucose test results from the lab and notify the physician. Although the Department alleges that Respondent failed to respond to Zieba's high urine glucose level, Respondent did respond in the way she believed it should have been handled medically. Believing the test to be in error, Respondent acted appropriately by attempting to obtain the results of the confirmatory blood glucose test and did not fail to provide medical services a prudent person would consider essential.
26. Further, there is no evidence that Respondent's actions produced or could reasonably be expected to result in Zieba's death. Rather, the record in this cause indicates that earlier medical intervention might or might not have interrupted or delayed the course of Zieba's disease. In short, Respondent did not ignore the situation; rather, she exercise her judgment as to how best to handle the situation. Whether others might have acted differently is not the determining factor as to whether Respondent is guilty of neglect as that term is defined by the statute; rather, Respondent's conduct is judged by whether she caused injury or whether her conduct could reasonably be expected to cause death. Her conduct did not meet that standard since she made reasonable efforts to respond to Zieba's medical condition. Zieba's death ten days later, although tragic, was not caused by Respondent.
RECOMMENDATION Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent not guilty of neglect of a disabled adult and expunging the Department's report numbered 97-036049. DONE AND ENTERED this 6th day of April, 1999, in Tallahassee, Leon County, Florida. ___________________________________
LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1999. COPIES FURNISHED:
Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
Colleen A. Donahue, Esquire Department of Children and Family Services 201 West Broward Boulevard, Suite 502 Fort Lauderdale, Florida 33301
David Gorewitz, Esquire 1990 West New Haven Avenue, Suite 207 Melbourne, Florida 32904
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case. ON OF |
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