M.A.B. v. Department of Health and Rehabilitative Services, 92-3619

• Decision Date: 07 February 1994
• Docket Number: No. 92-3619,92-3619
• Citation: 630 So.2d 1252
• Parties: 19 Fla. L. Weekly D299 M.A.B., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
• Court: Florida District Court of Appeals

Page 1252

630 So.2d 1252

19 Fla. L. Weekly D299

M.A.B., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.

No. 92-3619.

District Court of Appeal of Florida First District.

Feb. 7, 1994.

Jonathan S. Grout of Goldsmith & Grout, P.A., Tallahassee, for appellant.

Kathleen R. Harvey, Dept. of HRS, Largo, for appellee.

DAVIS, Judge.

Appellant, M.A.B., seeks reversal of a finding that she was guilty of neglect of a dependent adult under chapter 415, Florida Statutes, and an order to expunge her name from the abuse/neglect registry. At all times pertinent to this appeal, M.A.B. was the Administrator at Tender Loving Care Nursing Home (TLC.

R.L. was a quadriplegic with a C3 spinal cord injury from a gunshot wound. He was shot on September 14, 1988. He was hospitalized at Palm Beach Gardens Medical Center until January 12, 1989. He was then transferred to Treasure Coast Rehabilitation Hospital. Authorities at Treasure Coast eventually decided that R.L. was ready to be transferred to a less acute care facility, and contacted TLC.

Although Sheria Morris, TLC Director of Nursing, advised against accepting R.L. because of the extent of his dependence on caregivers due to the nature of his injuries, M.A.B. agreed to accept him. He was transferred to TLC on July 18, 1989. The first day R.L. was at TLC the nurses were concerned about being able to care for him, and M.A.B. felt that she had been misled as to the extent of his injuries and dependence. That day or the very next day, M.A.B. called Treasure Coast and said they would have to transfer R.L. back because TLC could not care for him. Treasure Coast said they had no bed available and would not take him back. These concerns were brought to the attention of R.L.'s doctors, and Dr. Dayton put an order in R.L.'s chart on July 20, 1989, to discharge him back to a rehabilitation facility. R.L.'s care was being paid for by Palm Beach County. There is a letter dated July 21, 1989, from M.A.B. to the Palm Beach County official responsible for paying for R.L.'s care, stating that she felt she had been misled as to the severity of his condition, and that he needed to be transferred to a more acute care facility.

R.L. was given the room across the hall from the nurses station, so they could keep a better eye on him. He was anxious and scared because of being in a new situation and being utterly dependent upon the ventilator to breathe. When he first arrived at TLC he required almost constant care, and very frequent suctioning. Since a C3 quadriplegic cannot cough up mucus, he must be suctioned when mucus plugs form, to prevent the plugs from suffocating him. The doctor's orders for R.L. required suctioning "PRN," meaning "as needed." Although some nurses refused to work with R.L., over time things calmed down, and he required less frequent suctioning. There was a monitor in his room, so the nurses could hear if he was in distress, there was also an alarm on his ventilator to alert them of an emergency need for suctioning. He was checked regularly by the nurses on rounds.

On the night of August 21, 1989, one nurse and one nurse's aide were scheduled to work on 1 Southwest, the floor where R.L.'s room was located. When the nurse's aide came on shift at 11 there was a nurse from the 3-11 shift in R.L.'s room. When the next nurse came on duty at midnight (she was an hour late due to a family emergency, she checked R.L. and he was resting comfortably and showing no signs of distress. Therefore she did not disturb him. She checked him again at 1 a.m. with the same results. At 1:50, Nurse Brooks was helping a nurse on another wing with an emergency when the nurse's aide heard the ventilator alarm go off. They do not know exactly how long the alarm had sounded before she heard it. The aide called the Nurse who went immediately to R.L.'s room and found him blue. She called for 911 and began to attempt to resuscitate him. She was not successful. The autopsy showed R.L. expired from the effects of a mucus plug.

The Agency adopted the findings of fact and conclusions of law of the hearing officer who heard this case. That order includes a finding that M.A.B. "kept R.L. at TLC until he died on August 21, 1989" despite Dr. Dayton's discharge order. The order also finds as a matter of fact that M.A.B. failed to ask the supplier of the ventilator equipment to provide in-service training to her staff. Paragraph 18 of the findings of fact paraphrases the opinions offered by Joyce Steier, a career R.N. and nursing home administrator who was offered by HRS as an expert in nursing home administration, to wit.:

R.L. was neglected by Respondent by her failure to make a more diligent effort to discharge R.L.; by failing to provide an in-service training to her...