Department of Health & Rehabilitative Services v. S.G.

• Decision Date: 19 February 1993
• Docket Number: Nos. 92-661,92-679,s. 92-661
• Citation: 613 So.2d 1380
• Parties: 18 Fla. L. Week. D577 DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. S.G., Appellee.
• Court: Florida District Court of Appeals

Page 1380

613 So.2d 1380

18 Fla. L. Week. D577

DEPARTMENT OF HEALTH & REHABILITATIVE SERVICES, Appellant, v. S.G., Appellee.

Nos. 92-661, 92-679.

District Court of Appeal of Florida,

First District.

Feb. 19, 1993.

W. Douglas White, Asst. Dist. Legal Counsel, Dept. of Health and Rehabilitative Services, Pensacola, for appellant.

William Eddins, Pensacola, for appellee.

WIGGINTON, Judge.

These consolidated appeals are brought from separate orders entered by the hearing officer awarding attorney's fees pursuant to sections 120.57(1)(b)5., and 57.111, Florida Statutes. For the following reasons, we approve the award under section 57.111, but reverse the award under section 120.57.

Appellee, a registered nurse, is the owner and director of an adult congregate living facility known as The Elite Guest House. One of the elderly residents of that facility was G.F., who had earlier undergone surgery for a broken hip, and at the time of the incident, was convalescing as a patient in the skilled nursing unit of Pensacola Health Care, a licensed nursing home. It was established that appellee often visited G.F. while she was in the hospital and while she was at the nursing home, in order to feed her and to brush her hair.

On February 21, 1990, approximately one month following the surgery, appellee picked up G.F. at the nursing home and transported her to an appointment with G.F.'s orthopedic physician. At that time, appellee had in her possession written permission from G.F.'s guardian, an Episcopal priest, to take G.F. back to Elite if it was permissible with the doctor. Although G.F.'s orthopedic physician, Dr. Benton, was not in that day, G.F. was seen by Dr. Benton's associate, Dr. Campbell. After examining G.F., Dr. Campbell told appellee that G.F. could be returned to Elite. Accordingly, appellee immediately returned G.F. to Elite and then proceeded to Pensacola Health Care to check G.F. out and to retrieve her personal belongings.

However, when appellee arrived at Pensacola Health Care, she was stridently questioned concerning the whereabouts of G.F., and was informed that she must return G.F. immediately because G.F. had not been discharged and was not ready to be discharged. It was the opinion of Dr. Holmes, Pensacola Nursing Home's attending physician, that G.F. was not an appropriate candidate for placement in an adult congregate living facility due to her current medical condition, including incontinence, her need for receiving antibiotic treatment for a severe urinary tract infection, the fact that she was totally non-ambulatory, and her suffering from mental confusion due to Alzheimer's Disease.

Upon being confronted, appellee explained to the personnel what Dr. Campbell had said to her, and showed them the letter from G.F.'s guardian. In fact, she suggested they call Dr. Campbell to verify that he had indeed discharged G.F. to Elite. At that point, the head nurse attempted to contact Dr. Campbell, who apparently declined to come to the phone to speak with either appellee or with Dr. Holmes. The nurse then contacted G.F.'s guardian, Reverend Coates, to inform him of the circumstances. At the time he was contacted, Reverend Coates was attending to a dying parishioner. Nonetheless, the nurse gave him 15 minutes to decide whether to have an ambulance retrieve G.F. from Elite and return her to Pensacola Health Care, or otherwise face the prospect of the nursing home's calling the sheriff's office to have appellee arrested. Reverend Coates decided that G.F. was to be immediately returned by ambulance to the nursing home. Upon her arrival, there was no indication that G.F. had suffered injury or harm during her approximately nine hour stay at Elite, except to the extent that sometime during that period her catheter had been removed. There was no evidence that any personnel at Elite removed the catheter, and it was not ruled out that G.F. may have removed it herself.

In due course, following an anonymous phone call, the Department of Health and Rehabilitative Services conducted an investigation and made a finding against appellee of confirmed neglect of an elderly person based upon its conclusion that G.F. was not an appropriate candidate for residency in an adult congregate living facility due to her medical condition, and that appellee's action in placing G.F. in the facility exposed the elderly woman to a risk of harm. The chief investigator for HRS in this case, Pennye Melvin, was charged with the responsibility of speaking to all people involved with G.F. and appellee on the day in question. However, Melvin admitted she never spoke to Dr. Campbell due to the fact she had "heard" he had refused to speak with her. Furthermore, no one spoke to Dr. Campbell's partner, Dr. Benton. Dr. Benton later reviewed Dr. Campbell's notes and the events that occurred in their office and wrote HRS a letter telling them, "I get the impression that Dr. Campbell felt that it was all right for the patient to be discharged from Pensacola Health Care Facility to the ACLF (Elite)." He further stated, "It is my impression that the entire incident was one of misunderstanding."

It was also revealed that Melvin did not interview any of the employees at Elite who were present the day G.F. was returned to that facility. When asked why she had not done so, she simply replied, "I don't know." However, had she interviewed Dr. Campbell, she would have been informed that it had been permissible from an orthopedic standpoint that G.F. be transferred. From Dr. Benton, Melvin would also have learned that there had been no medical contraindication for G.F.'s return to Elite contained in the medical notice that Dr. Campbell had written on the day of his office visit with G.F.

Additionally, Michael Horgen, an adult protective services specialist with HRS, was charged with the responsibility of reviewing the neglect classification recommended by Melvin. He also did not speak either to Dr. Campbell or Dr. Benton; instead, he briefly questioned one employee at Elite, but never questioned anyone else as to what supervision G.F. was under while she was there. He received Dr. Benton's letter indicating the entire event was a misunderstanding after he had recommended denial of appellee's request for expungement, and therefore felt there was nothing he could do to change the recommendation.

Appellee subsequently filed a request for expungement of the confirmed report, following which an administrative hearing was held. As a result of the hearing, the hearing officer recommended the finding of confirmed neglect be expunged. This recommendation was approved and adopted by the agency's final order, from which no appeal was taken by either party.

Also contained in the recommended order, and pertinent to the issues raised in these consolidated appeals, the hearing officer awarded appellee attorney's fees and costs pursuant to section 120.57(1)(b)5., specifically finding that the "gravamen of the bill of particulars [filed by HRS prior to the final administrative hearing] evinced a 'frivolous purpose' within the meaning of the statute."

Additionally, the hearing officer found that this award of fees "shall be without prejudice to proceedings under section 57.111, Florida Statutes (1989), and Rule 22I-6.035, Florida Administrative Code, for recovery of costs and fees incurred before the filing of the bill of particulars or for other non-duplicative costs."

The recommendation of the hearing officer that the finding of confirmed neglect be expunged was confirmed by the agency's final order in which the secretary adopted and incorporated by reference the inclusions of law set forth in the recommended order, with the noted exception of "the conclusion the prosecution of this case was frivolous." In that regard, the secretary stated the following:

In this case the Hearing Officer resolved the conflicting medical testimony against the department. Failure to satisfy the burden of proof does not equate to a frivolous prosecution.

No appeal was taken by either party from the agency's final order.

Later, a hearing was held on appellee's motion seeking fees filed under section 120.57, and an order was filed on February 7, 1992. Therein, the hearing officer noted the agency's final order adopting his findings of fact and conclusions of law with the exception of the conclusion that the prosecution was frivolous. The hearing officer specifically stated in that regard that "no agency has the authority to overturn by fiat an award of attorney's fees and costs entered against it under section 120.57(1)(b)5., Florida Statutes" (citation omitted). The hearing officer went on to conclude that after the filing of the bill of particulars by HRS, which subsequently was found to violate section 120.57(1)(b)5., appellee incurred attorney's fees during the period beginning February 20, 1991, and continuing through April 18, 1991, in the amount of $5400. The hearing officer went on to find that during this same period, appellee also incurred costs in the amount of $1,015.50. Accordingly, the hearing officer ordered HRS to pay appellee $6,415.50.

The hearing officer also considered appellee's timely petition filed under section 57.111 seeking fees pursuant to Florida's Equal Access to Justice Act, section 57.111(4)(b)1. After preliminarily finding that appellee satisfied certain prerequisites for standing to seek fees under this statute, the hearing officer found that HRS "failed to prove substantial justification for concluding that anything more remarkable than a harmless misunderstanding had transpired." The hearing officer also rejected HRS' argument that the question of substantial justification was res judicata in light of the earlier agency final order wherein the agency concluded that the bill of particulars was not frivolous. In that regard, the hearing officer concluded that section 57.111, "which authorizes hearing officers to award attorney's fees and...