A.O., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

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District Court of Appeal of Florida,Fifth District.

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

No. 96-1769.

Decided: July 25, 1997

Kenneth M. Beane, Maitland, for Appellant. Eric D. Dunlap, Assistant District Legal Counsel, Department of Health and Rehabilitative Services, Orlando, for Appellee.

A.O., a certified nursing assistant (CNA), appeals a final order of the Department of Health and Rehabilitative Services (HRS) confirming a report finding him to be a perpetrator of neglect of an aged person.   The HRS order allowed his name to be placed on the state's abuse registry pursuant to section 415.103, Florida Statutes (1993).   We reverse.

A.O., an employee of a temporary health care agency, was assigned to care for L.H., a patient at a nursing home.   The nursing home's supervising registered nurse instructed A.O. to bathe each of his patients while she distributed medication to other patients on the floor.   After successfully completing the first patient's shower, A.O. assisted L.H. into a shower chair and placed a soft restraint around her waist.   Discovering that towels and washcloths which were on the towel cart when he showered the first patient were missing, he attempted to locate replacements.   Failing to locate the replacements, he asked his supervising nurse if she could locate some for him.   She looked in the direction where L.H. was sitting in the shower chair, and told A.O. that she did not know where the towels were kept and that he should find them himself.   He then returned to L.H. and rolled her shower chair into her room assuming that his supervisor, having seen L.H. in the hall, would look after her while he searched for towels.   The assumption was incorrect;  unknown to A.O., the supervisor did not monitor L.H. but continued on her rounds passing out medication to other patients.

Abandoning his effort to locate towels, A.O. was returning to L.H.'s room when he heard a housekeeper call out that a patient was on the floor.   Running to L.H.'s room and arriving about the same time as the supervising nurse, he found L.H. on the floor next to the shower chair.   Medical personnel were called, L.H. was transported to a hospital emergency room, and a subsequent examination revealed that she had fractured her right wrist.

A complaint against A.O. was filed and a proposed confirmed report of neglect on A.O. was entered under the Florida Protective Services System.   A.O. then applied for and was denied a request for expungement of the record.   Finally he requested a formal administrative hearing and that request was granted.

The hearing officer who presided over the formal administrative hearing recommended to HRS that a final order be entered upholding the finding of neglect made under the Florida Protective Services System.   The hearing officer noted in the final order the definition of neglect under section 415.102(12), Florida Statutes (1993) and concluded that A.O. was guilty of neglect under such statute by finding:

When [A.O.] discovered that all the towels were gone from the towel cart and began his search for them, he became careless for the safety of his patient, L.H. Although he sought assistance from the staff nurse, and her refusal to assist was unprofessional, the patient was still in [his] care․  His assumption that [the supervising nurse] must have seen L.H. sitting in a chair in the hall and would look after her while he searched the hall for towels, was carelessness as contemplated by the statute.   Since L.H. was an aged and disabled adult, she was easily susceptible to injury.   A reasonably prudent caregiver would recognize that such a person, while sitting in a shower chair unattended, was exposed to potentially-serious injury.   Although L.H.'s wrist injury may not be considered serious, the potential for injury from falling, even from a short distance from the chair to the floor, could reasonably be expected to result in serious physical harm.   Thus [A.O.'s] single incident of carelessness must be classified as neglect under the statute.

The hearing officer recommended that a “final order be entered upholding the classification of [the] abuse report ․ as confirmed for neglect and denying the request by [A.O.] to amend or expunge his name from the report as a confirmed perpetrator of neglect of an aged person.”   HRS adopted in full the recommended order.   A.O. then appealed the HRS final order.

In K.M.T. v. Dept. of Health & Rehabilitative Services, 608 So.2d 865 (Fla. 1st DCA 1992), a CNA employed by a care center understood it to be a standard operating procedure that patients should not be left alone in the facility's restorative dining room for any amount of time.   K.M.T., a CNA, was in this dining room with two patients.   Her co-employee took another patient back to that patient's room but then delayed returning to the dining room for several minutes because she was asked to assist with some other patients.   When the co-employee returned, she observed that the two patients in the dining hall were unattended and that one of them was lying on the floor trying to get up.   After being attended to by medical personnel, it was determined that the patient did not suffer any substantial physical harm.   K.M.T. apparently had left these patients alone in order to put some power steering fluid in her car.   She reasoned that she would only be absent a few minutes and the patients were fine when she left them alone a few minutes earlier to return their trays.

Under an earlier version of section 415.102 than is presently applicable, the first district found that HRS had failed to prove by a preponderance of the evidence that K.M.T. had committed the alleged neglect.   The court noted:

․ HRS had to prove that continuous supervision of aged persons or disabled adults present in restorative dining rooms is essential to their well-being.   The only evidence presented by HRS on this issue was Centerville's “tacitly understood” policy that at least one staff member had to be present in the restorative dining room at all times when even one patient was present in the dining room.   HRS presented no agency rule stating that aged persons and disabled adults may not be left unattended for a few minutes in a nursing home's restorative dining room, there was no expert testimony that Centerville's “tacitly understood” policy was a generally accepted standard within the nursing home industry.

The court then went on to conclude that

the purely subjective standard the hearing officer created and applied in this case does not constitute a sufficient standard for determining whether an individual's acts or omissions constitute neglect within the meaning of the Act ․ the acts or omissions must be judged against an objective standard, which may be defined by rule or by proof of general acceptance within the nursing home industry․  Because HRS failed to prove that K.M.T.'s single act of briefly leaving L.V. unattended in the restorative dining room constituted neglect as defined by section 415.102(13), the confirmation of neglect must be reversed.  (Emphasis omitted).

K.M.T. at 872-73.

 The 1993 version, as well as the current version of section 415.102(12), re-codified as subsection 415.102(20), includes a definition of neglect which did not exist in the statute interpreted in K.M.T. The 1993 and current statutes both include the following additional language:

“Neglect” is repeated conduct or a single incident of carelessness which produces or could reasonably be expected to result in serious physical or mental harm or a substantial risk of death.

Under the revised statute, neglect is no longer simply what it has traditionally meant-failing to provide that which is essential to caring for another's well being-but now also includes any act of “carelessness” which could reasonably be expected to result in serious physical injury.   The revised statute, however, while clearly designed to encompass more acts within its scope, does not alter the requirements of objectivity set forth in K.M.T.

 In the instant case, as A.O. correctly asserts, HRS failed to show that leaving the patient unattended was either contrary to generally accepted nursing care standards, or a violation of an HRS promulgated rule.

We reverse the final agency order with directions to expunge A.O.'s name from the abuse registry.

ORDER REVERSED;  REMANDED.

I respectfully dissent.

It is well established that an appellate court is prohibited from substituting its judgment for that of an administrative agency in assessing the weight of the evidence or resolving disputed factual issues. § 120.68(10), Fla. Stat. (1993).   See McKinney v. Castor, 667 So.2d 387 (Fla. 1st DCA 1995);  Carreras v. Florida Birth-Related Neurological Injury Compensation Ass'n, 665 So.2d 1082 (Fla. 3d DCA 1995);  Rosmond v. Unemployment Appeals Com'n, 651 So.2d 233 (Fla. 5th DCA 1995).   The relevant inquiry on appeal is whether the agency's findings are supported by competent substantial evidence.   Legal Environmental Assistance Foundation, Inc. v. Clark, 668 So.2d 982 (Fla.1996);  Department of Health & Rehabilitative Servs. v. A.S., 648 So.2d 128 (Fla.1995);  Waterman v. State, 654 So.2d 150, n. 2 (Fla. 1st DCA 1995).   See also University of Miami v. Zepeda by and Through Zepeda, 674 So.2d 765 (Fla. 3d DCA 1996) (appellate court bound to affirm where record contains competent substantial evidence to support hearing officer's determination and discloses neither an abuse of discretion nor a violation of law by the agency);  Kelle v. D.H. Holmes Co., Ltd., 658 So.2d 1161 (Fla. 2d DCA 1995) (same);  Rosmond (same).   Moreover, an agency's order is entitled to a presumption of correctness.   See Clark, 668 So.2d at 987;  Kelle, 658 So.2d at 1162.   In this case, both the Florida Protective Services System and the hearing officer made a finding that A.O. was guilty of neglect.   Their factual determinations are supported by competent substantial evidence.

The majority's reliance on K.M.T. v. Dep't of Health & Rehabilitative Servs., 608 So. 2d 865 (Fla. 1st DCA 1992) to define the meaning of neglect, as set forth in section 415.102(12), Florida Statutes (1993), is misplaced.   That statute provides in relevant part:

(20) “Neglect” means the failure or omission on the part of the caregiver or disabled adult or elderly person to provide the care and services 1 necessary to maintain the physical ․ health of an aged person or disabled adult, including, but not limited to ․ supervision ․ that a prudent person would deem essential for the well-being of an aged person or 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 mental harm or a substantial risk of death. [emphasis supplied].

The italicized portion of the above statute became effective upon the enactment of section 415.102(13) (1990 Supp.).   The court's decision in K.M.T. was based on an interpretation of section 415.102(13), Florida Statutes (1989) which did not contain that language.   Although the majority focuses only on the latter portion of the statute, the statute, when read as a whole, clearly encompasses the conduct which occurred in this case.   Specifically, it defines neglect as the caregiver's failure to provide the supervision necessary to maintain the physical health of an aged person or disabled adult.   Additionally, the required supervision is that which “a prudent person would deem essential for the well-being of an aged person or disabled adult.”   Black's Law Dictionary defines prudent as “[p]ractically wise, judicious, careful, discreet, circumspect, sensible․  In defining negligence, practically synonymous with cautious.” black's law dictionary 1104 (6th ed. 1990).   Thus, the caregiver is required to act sensibly and cautiously when supervising an aged person or disabled adult.

The italicized portion of the statute mandates that a single incident of carelessness, including the caregiver's failure to sensibly and cautiously supervise the aged person or disabled adult, which produces or could reasonably be expected to result in serious physical injury, as in this case, is evidence of neglect.   The legislature's addition of the italicized language to the definition of neglect is consistent with its express intent to “protect the [elderly and disabled] individual from abuse, neglect, and exploitation.” § 415.101(2), Fla. Stat. (1993).   By adding this language to the statute, it is now possible to remove a person in the role of a caregiver based on a single incident of carelessness rather than waiting for serious misfortune to befall the aged person or disabled adult after a pattern of abuse, neglect and exploitation.   Thus, while the trial court in K.M.T. expressed its concern that a finding of neglect on the part of K.M.T. would “result in K.M.T. being barred from all employment positions of special trust and, in essence, blacklisted from her profession ․,” K.M.T., 608 So.2d at 872, the widespread awareness of the potential for abuse, neglect and exploitation of the elderly and the disabled in our society, as evidenced by the legislature's attempt to remedy the problem, has given rise to an equally compelling concern for those individuals.   The majority's reversal of the finding of neglect by both the Florida Protective Services System and the Department of Rehabilitative Services because the latter agency “failed to show that leaving the patient unattended was either contrary to generally accepted nursing care standards, or a violation of an HRS promulgated rule” imposes an additional requirement not mandated by the plain language of the statute.   To the contrary, the hearing officer's factual findings that “[a] reasonably prudent caregiver would recognize that ․ a person, while sitting in a shower chair unattended, was exposed to potentially-serious injury” and that “the potential for injury from falling, even from a short distance from the chair to the floor, could reasonably be expected to result in serious physical harm,” is based on competent substantial evidence of neglect, as statutorily defined.

This is clearly a case of an appellate court simply disagreeing with the decision of an administrative body.   That, under the law, is an insufficient reason for the countermanding decision.

The legislature has given the authority to the department, so this court should not arbitrarily take it away.

FOOTNOTES

1.   Section 415.102(20), Florida Statutes (1995) reads “to provide the care, supervision, and services necessary ․”

PETERSON, Judge.

GOSHORN, J., concurs. DAUKSCH, J., dissents, with opinion.

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