With all due respect to the blood shed and knowing that OUR FLAG is flown upside down only on time of DIRE EMERGENCY I present you with reason of the distress call. It is a Call to Action.

Cpl Pro USMC, RN, Taxpayer and FREEDOM LOVER.!!

IN THE DISTRICT COURT OF APPEAL

FIFTH DISTRICT

STATE OF FLORIDA

 

 

Jose N. Proenza-Sanfiel, R.N.,

Appellant,

 

 

V. CASE NO. 138-1717

 

 

Department of Health,

Appellee.

ON APPEAL FROM A FINAL ORDER

OF THE BOARD OF NURSING

 

ANSWER BRIEF OF APPELLEE

DEPARTMENT OF HEALTH

 

Kathryn L. KASPRZAK

Senior Attorney Florida Bar No. 937819

AGENCY FOR HEALTH CARE ADMINISTRATION

The Palmer Building Post Office Box 14229

Tallahassee, Florida 32317

(850) 414-7186 SUNCOM 994-7166

 

 

ATTORNEY FOR APPELLEE

 

 

 

TABLE OF CONTENTS Page

TABLE OF CITATIONS ······· ·· i

PRELIMINARY STATEMENT.......······· 1

STATEMENT OF THE CASE .. · · · · · · ······2

STATEMENT OF THE FACTS ................... · ·8

SUMMARY OF THE ARGUMENT ............ ······10

ARGUMENT ························17

Argument I. ··················· 17

ArgumentII......... 22

Argument III ........22

Argument IV............... ...25

Argument V.............. · · · · ·26

Argument VI ................... ....... ...28

Argument VII ............. .........· ·· ·..32

Argument VIII ................... · · · ·33

CONCLUSION·················· ······ ....35

CERTIFICATE OF SERVICE...... ······ 36

 

TABLE OF CITATIONS

 

Cases

Page(s)

 

Allstate v. Gillespie,

455 So.2d 617 (Fla. 2d DCA 1984) ....................,,24,25

 

Brooks v. Department of Professional Regulation,

578 So. 2d 381 (Fla. 1st DCA 1991) ................... 33,

 

Carter v. Department of Professional Regulation,

633 So. 2d 3 (Fla. 1994) ................... 31,32

 

Carter v. Department of Professional Regulation, Board of Medicine,

550 So. 2d 494 (Fla. 1st DCA 1989).........,,...33

 

Department of Business Regulation v. Hyman,

417 So. 2d 617(Fla. 1982)................... .30,32

 

E. J. Associates, Inc. v. The John E. and Aliese Price Foundation, Inc.,

515 So. 2d 763 (Fla. 2d DCA 1987)...............,25

 

Guest v. Department of Professional Regulation, Board of Medical Examiners,

429 So. 2d 1225 (Fla. 1St DCA 1983).........,...21

 

Lerro v. Department of Professional Regulation,

388 So. 2d 47 (Fla. 2d DCA 1980)............... .29

 

The Florida Bar v. Cibula,

Case No. 89,551 (Fla. November 25, 1998).......20

 

 

Statutes

Page(s)

 

Section 20.43, Florida Statutes · · · · · · 1

Section 1 19.07(3)(1)(1), Florida Statutes · · ··12

Section 120.52, Florida Statutes ...........· ···21

Section 120.52(8), Florida Statutes ·· · ··· · ·13

Section 120.52(8)(a), Florida Statues · ···· · ·32

Section 120.52(8)(g), Florida Statutes · · · · ·32

Section 120.54, Florida Statutes 11,21

Section 120.54(4)(a)(3).........................21

Section 120.54(9)(1a)3 .,................. 1

Section 120.569, Florida Statutes · · · ···· · ·1

Section 120.569Ci), Florida Statutes.............29

Section 120.57(1), Florida Statutes.............. I

Section 120.57(1)(j), Florida Statutes ..........31

Section 120.60(6), Florida Statutes.·..· ··.· · ·11

Chapter 455, Florida Statutes...... 1,3,10,12,22,32

Section 455.01(4), Florida Statutes ............ 22

Section 455.225(8), Florida Statutes .......... 11

 

Page(s)

Section 455.227(11)(i), Florida Statutes.........26

 

Section 455.227(1)(k), Florida Statutes ……… 3,5

Section 4 5 5.22 7( 1 )(q), Florida Statutes .....3

Section 45 5.22 7(3 1), Florida Statutes ................... 16

Section 455.23 2(11), Florida Statutes ......... 12

Section 455.241, Florida Statutes ...............23

Section 455.241(11), Florida Statutes ....... 17,22

Section 455.241(2), Florida Statutes 3,5, 14, 17, 18,20,22,32

Section 455.501(4), Florida Statutes.................22

Section 455.624(3).....16

Chapter 464, Florida Statutes), Florida Statutes, ………...; 16

Section 464.018(1)(j), Florida Statutes.............3,5

Section 464.018(1)(1), Florida Statutes...2,4,5,14,32

Section 464.018(2)(e), Florida Statutes.........,...16

 

Rule(s)

Page(s)

 

Chapter 59S, Florida Administrative Code ....... 10

Rule 59S-8.005(l)(e)3., Florida Administrative Code ................... .........,.,..2

Rule 59S-8005(l)(e)5., Florida Administrative Code ................... ...............2,5

Rule 59S-8.005(l)(e)12., Florida Administrative Code ................... .............2,5

Rule 59S-8.005(l)(e)13., Florida Administrative Code ................... .........,.3,5

 

 

 

PRELIMINARY STATEMENT

 

This is an appeal of a final order of the Board of Nursing, suspending Appellant’s license to practice nursing, with credit for time under emergency suspension; placing Appellant on probation for five years, with terms and conditions; and imposing an administrative fine of $500 and administrative costs of the Department in the amount of $986.03. The Appellant, Jose N. Proenza-Sanfiel, R.N. ("Appellant" or "Proenza-Sanfiel") was the respondent in the proceedings below; the Appellee, Department of Health ("the Department"), or its predecessor, the Agency for Health Care Administration ("the Agency"), was the petitioner below.

The Honorable Daniel M. Kilbride was the Administrative Law Judge assigned by the Division of Administrative Hearings ("DOAH") to conduct a formal hearing in this matter, pursuant to sections 120.569 and 120.57(1), Florida Statutes. The Florida Board of Nursing ("the Board") is the administrative agency charged with final agency action for the regulation and licensure of registered nurses, in accordance with section 20.43, Florida Statutes, and Chapters 455 and 464, Florida Statutes.

References to the Record on Appeal are cited by volume and page number, as (I: xxx). Citations to the transcript of the formal hearing are designated: (T: xxx). References to the Supplement to the Record on Appealare indicated as (S: xxx) and citations to the transcripts of the two hearings before the Board of Nursing are cited (SS: xxx) Appellant’s Initial Brief is cited: (AIB: xxx). All emphasis is supplied by the Department unless otherwise indicated.

STATEMENT OF THE CASE

This case was initiated by the filing of an Order of Emergency Suspension of the License to practice nursing of Jose N. Proenza-Sanfiel,R.N. on January 31, 1997. (I: 1-15) The Order alleged that Proenza-Sanfiel had come into possession of confidential psychiatric patient records on the hard drive of a used computer he purchased from a thrift shop, which confidential records he then revealed to representatives of the news media in

the Orlando/Osceola County area.

On April 4, 1997, the Agency filed an Administrative Complaint alleging four violations of section 464.018(1)(1), Florida Statutes, for knowingly violating each of the following respectively: Rule 59S-8.005(1)(e)3., Florida Administrative Code, by misappropriating supplies, equipment or drugs; Rule 59S-8.005(l)(e)5., Florida Administrative Code,by violating the confidentiality of information or knowledge concerning a patient; Rule 59S-8.005(l)(e)12., Florida Administrative Code, by acts of negligence, gross negligence, either by omission or commission; and Rule 59S-8.005(l)(e)13., Florida Administrative Code, by failing to conform to the minimal standards of acceptable prevailing nursing practice regardless of whether or not actual injury to a patient was sustained.

In addition, Proenza-Sanfiel was charged with a violation of section 455.227(1)(k), Florida Statutes, by failing to perform the statutory and/or legal obligations placed upon licensees pursuant to section 455.241(2),Florida Statutes, which mandates that patient records may not be furnished to any persona other than the patient or the patient’s legal representative or other health care providers involved in the care or treatment of the patient, except upon written authorization of the patient. He was also charged with a violation of section 455.227(1)(q), Florida Statutes, by violating any provision of chapter 455, chapter 464, a rule of the department or agency or the board, or a lawful order of the department or agency or the board, which provisions included those statutory and regulatory provisions cited in

previous counts. Finally, the Agency charged Appellant with a violation of section 464.018(I)(j), Florida Statutes, by being unable to practice nursing with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, or chemicals or any other type of material or as a result of any mental or physical condition. (I: 22-24)

 

On April 22, 1997, Proenza-Sanfiel disputed specific facts of the Administrative Complaint and requested a formal hearing before the Division of Administrative Hearings. (I: 27) The matter was forwarded to the Division (I: 30) and the Honorable Daniel M. Kilbride, Administrative Law Judge, was assigned to the case. Although the Agency petitioned for a compelled mental and physical examination of Proenza-Sanfiel, the petition was denied by the Administrative Law Judge on June 25, 1997. (I: 49)

The parties presented a joint Prehearing Stipulation on August 14, 1997, in which they stipulated to many of the facts so as to narrow the issues for hearing. (I: 72-75). The matter proceeded to hearing on August 20, 1997, before Administrative Law Judge Kilbride. The Agency voluntarily dismissed Count I of the Administrative Complaint, and then called four witnesses and presented three exhibits for admission into evidence. Proenza-Sanfiel, represented by counsel, testified on his own behalf and offered no exhibits into evidence. (I: 145) Following the submission of proposed recommended orders by both parties, the Administrative Law Judge issued his Recommended Order on October 29, 1997. (I: 144-154)

In the Recommended Order, the Administrative Law Judge found that the Agency had proven by clear and convincing evidence that Proenza-Sanfiel was guilty of two violations of section 464.018(1)(1), FloridaStatutes, by violating Rules 59S-.005(l)(e)S (violating the confidentiality of information or knowledge concerning a patient)and 59S-8.005(l)(e)12,Florida Administrative Code (committing acts of negligence, gross negligence, either by omission or commission). Another charge of violating section 464.018(1)(1), Florida Statute, by failing to adhere to Rule 59S-8.005(1)(e)13, Florida Administrative Code, was found by the Administrative Law Judge not to be sustained by the evidence. (I: 151-152) Proenza-Sanfiel was also found guilty of a violation of section 455.227(1)(k), Florida Statutes, by failing to perform the statutory and/or

legal obligations placed on him pursuant to section 455.241(2), Florida Statutes, the patient confidentiality provisions. (7:152) He was found not guilty of a violation of section 464.018(1)(j), Florida Statutes, being unable to practice nursing with reasonable skill and safety to patients. (I: 153)Recommending that Proenza-Sanfiel be found guilty on the three counts described above, the Administrative Law Judge proposed dismissal of the other three counts. He further recommended a penalty of an administrative fine of $500; administrative costs of the Department; an eighteen month suspension of license with credit for time of suspension already served; and a five year probation following suspension, with such terms and conditions as the Board may determine appropriate. (I: 153)

 

 

Counsel for Appellant filed Exceptions to the Recommended Order on November 18, 1997. (I: 116-117) In addition, Proenza-Sanfiel submitted a document styled "Amended- Additional [sie] Exception Pro Se" on November 12, 1997. (I: 118-133) On that same date, he also submitted a Motion of Reinstatement of Nurse License Fla #-2523 862 (I: 1 34- 1 3 5) and a Motion of Dismissal (I: 136-137).

These matters came before the Florida Board of Nursing at its regularly scheduled meeting on December 11, 1997, in Tampa, Florida.

Proenza-Sanfiel was not present. (I: 138) The exceptions were considered and rejected. The findings of fact and conclusions of law of the

Administrative Law Judge were adopted by the Board. The Board voted to impose the penalty recommended by the Administrative Law Judge and formulated the terms and conditions to be satisfied during the probationary period. (I: 140-142) At some point not clear from the record, it came to the attention of both the Assistant Attorney General representing the Board and the Department counsel, Mr. Dixon, that neither Proenza-Sanfiel nor his counsel had received notice of the December 11, 1997 meeting at which his case was initially considered. (SS-25; S-3) The matter was set for hearing at the next scheduled Board meeting, and on January 23, 1998, Proenza-Sanfiel was sent a certified letter informing him that the Board of Nursing will conduct an "Informal Hearing" regarding his case on February 12, 1998, in Panama City, Florida. (S-2)

On February 12, 1998, the Board of Nursing vacated the original Final Order in this case because of the failure of notice (I: 167; SS: 25-27). Proenza-Sanfiel represented himself at the meeting, his counsel having withdrawn at his request that same day. (I. 165) The Board then painstakingly (and, at times, painfully) reviewed the Exceptions to the Recommended Order filed by counsel for Proenza-Sanfiel, as well as the document filed by Proenza-Sanfiel dated November 12, 1997 that purported to be further exceptions to the Recommended Order. (I: 167-168; SS: 28-173) Those exceptions were rejected, and the Recommended Order of the Administrative Law Judge was adopted as being supported by competent, substantial evidence in the record. (I: 168-169; SS: 174)

The Board voted to accept the penalty recommended by the Administrative Law Judge (I: 169; SS: 174), and determined those terms and conditions to be satisfied during the probationary period following suspension. (SS: 183-185)

The Final Order was filed on May 26,1998.

(I: 167) This timely appeal followed.

 

STATEMENT OF THE FACTS

The following Statement of the Facts relies solely upon the stipulated facts contained in the parties’ Prehearing Stipulation, submitted by the Agency counsel and counsel for Proenza-Sanfiel, and those facts actually found by the Administrative Law Judge following formal hearing.

At a date unknown, Jose N. Proenza-Sanfiel, a licensed registered nurse, obtained possession of a used computer, containing on its hard drive a database storing "confidential patient names, addresses, dates of administration, types of addiction, treatments, and psychiatric disorders for individuals treated at Charter Behavioral Health System Orlando ("Charter")." (I: 72; 176; T: 72-73) Charter is a sixty-(60) bed, full-service, psychiatric treatment hospital, for the examination, diagnosis and treatment of patients with drug, alcohol and/or mental health problems. (I: 72; 1 76) Because of his experience as a psychiatric nurse, Proenza-Sanfiel understood the importance of his discovery of the patient records and the possible ramifications of their release for viewing by unauthorized persons.

(I: 176; T: 86) Proenza-Sanfiel contacted several law enforcement agencies to attempt to get them to investigate Charter for the alleged negligent release of the patient records. (I: 177; T: 74-75) When these attempts were unsuccessful, he then contacted several news media outlets in the Orlando area. The media representatives were allowed access to the computer data which was shown to the general viewing public via videotape played over the air during two news reports airing in the Orlando area on or about January 23, 1997. (I: 73; 177; T: 77-81) Proenza-Sanfiel appeared on both broadcasts as the nurse who discovered the patient records in the computer.

(I: 73; 177; 90-90) Patient names and other patient record data were readily identifiable during the broadcast, and at least one former patient was interviewed by the media and was distraught at the violation of his patient confidentiality. (I: 73; 177; T: 77-81)On or about January 24, 1997, representatives of the Agency spoke with Proenza-Sanfiel and directed him to return the confidential records to Charter or to the Agency. Proenza-Sanfiel refused. (I: 74; 178; 13-14)Similarly, on that same date, Proenza-Sanfiel declined to turn over the confidential patient records to Charter when contacted by its Vice President of Risk Management. Furthermore, he indicated that he might contact the patients himself for the purposes of selling the information back to them,despite the fact that the Charter representative reminded him that the information was not his to sell. (I: 74; 178; 31-33)

Charter filed for injunctive relief in the Circuit Court of the Ninth Judicial Circuit, Orange County, Florida. On January 27, 1997, the Honorable John H. Adams, Sr., Circuit Court Judge, issued an Order Granting Plaintiffs Motion for Temporary Injunction, finding that patient confidential information "is in the custody of persons not authorized to possess this information", "that portions of such information have been disclosed to third parties including the broadcast media", and that "there is an imminent risk of irreparable harm of further disclosure of such confidential information." (I: 74-75; 178-179)

On January 31, 1997, the Agency filed an Order of Emergency Suspension of the License to practice nursing of Jose N. Proenza-Sanfiel, Jr.,alleging that the foregoing facts constituted violations of Chapter 455 and 464, Florida Statutes, and Chapter 59S, Florida Administrative Code. It further alleged that such violations constituted an immediate danger to the health, safety and welfare of the public by virtue of the public exposure of confidential patient information through media outlets and the resultant patient embarrassment, harm and possible disruption in patient care. (I: 1-10)

SUMMARY OF THE ARGUMENT

Appellant raises numerous arguments in his Summary of the Argument in a total of eighteen (18) numbered paragraphs. Yet the Argument portion of his Initial Brief delineates eight claims.

Although some of these eight appear to overlap, they will be addressed in the order that they appear in the Argument portion of his Brief, pages 25 through 29.

In this Summary of the Argument, each of the eighteen paragraphs in Appellant’s Summary of Argument will be addressed briefly.

1. The Department has the power to summarily suspend a license to practice a health care profession under sections 455.225(8) and 120.60(6),

Florida Statutes. Appellant’s claim that the Department was attempting rulemaking when it suspended his license misreads the law, which requires compliance with certain provisions of section 120.54, Florida Statutes, but does not make the issuance of an emergency order rulemaking.

2. Appellant challenges the issuance of the Emergency Order because the Department did not utilize the least costly alternative to substantially accomplish the statutory objectives of the emergency action. Appellant has waived this, and all other challenges to the sufficiency of the Emergency Order, by failing to take a timely appeal of the Emergency Order. He also claims a violation of his constitutional rights because the suspension of his license eliminated "the ability of the nurse to defend itself by hiring of counsel." (AIB: 14) Yet, it is demonstrated on this record that Appellant was represented by counsel below, who he requested withdraw on or about

the time of his appearance before the Board of Nursing. Nor did the Department silence him through his "purse" and keep him from exercising his right of free speech. The lengthy transcript of the hearings before both the Administrative Law Judge and the Board, and this appeal, demonstrate that Appellant has, in no way, been silenced.

3. The Department properly has jurisdiction over a licensed nurse who violates a provision of Chapters 455 and 464, and the applicable rules thereto, whether or not the nurse was practicing nursing at the time of his actions. The Department and the Board have exercised authority properly granted to them by the Legislature in disciplining a health care practitioner for releasing confidential psychiatric patient records to unauthorized persons .

4. The Department did not deny Proenza-Sanfiel "mediating abilities." This record reflects that Proenza-Sanfiel at no time requested any sort of "mediation" of his case. Although he could have elected to sign a settlement stipulation of this case, he did not, instead choosing a formal hearing at DOAH, which he received.

5. Appellant asserts that the Department violated statutory provisions requiring the protection of the identity of informants to the State. The plain language of sections 119.07(3)(1)(1) and 455.232(1), Florida Statutes, which he cites as authority for this asserted error, indicate that they are not applicable to the facts herein.

6. The Department is not limited to a single count or allegation either in its Emergency Order or in the Administrative Complaint. Section 120.54(8), Florida Statutes, is applicable to the drafting of administrative rules only, which is not at issue in this appeal.

 

7. Appellant next asserts that the Department did not place the Emergency Order in the Florida Administrative Weekly as required by section 120.54(9)(a)3., Florida Statutes. He cannot cite to the record in this case for any support for this contention. As with previous issues, having failed to raise this issue by appealing the Emergency Order, he has waived his opportunity to challenge the publication requirement.

8. There is nothing in this record that indicates that Appellant requested copies of the news broadcast videotapes either through discovery or other informal means until this appeal. Therefore, he cannot now claim error by the Department for failing to provide that which he did not ask for.

9. The Administrative Law Judge was neither misled nor did he erroneously accept the duplicate of the master videotape for one of the television broadcasts. This videotape, as well as the other television station’s actual broadcast footage,objection by Appellant’s counsel.were admitted into evidence without

 

10. The Department dismissed the charges in the Administrative Complaint dealing with misappropriation of equipment and /or supplies. Therefore, Appellant cannot assert error on this issue.

11. There was clear and convincing evidence in the record that the confidential psychiatric patient records in Appellant’s custody were seen by representatives of the broadcast media through the efforts of Appellant. As such, the violations charged were proven by competent, substantial evidence.

12. The Department properly charged Appellant with violations of section 464.018(1)(1), Florida Statutes, for violating Board rules, and section 455.241(2), Florida Statutes, for causing confidential patient records to be furnished to unauthorized persons. This rovision does not require "privity" with the patient whose record the licensee illegally releases. The licensee’s duty to maintain confidentiality is not premised on his creation of the record,nor is it founded on the licensee’s actual care of the patient. Rather, the duty to maintain confidentiality is inherent in the licensee regardless of whose patient it is, whose record it is, or how the licensee came in contact with the record. Appellant asserts that "once confidential information is disclosed it can not be taken back". (AIB: 20) Such a truism does not excuse the deliberate acts of a licensee charged with keeping such information confidential increasing the scope of the disclosure.

13. The Board of Nursing properly vacated the Final Order entered as a result of its December 11, 1997, meeting when it found out that Appellant had failed to receive notice that his case was to be heard at that meeting.

Proper notice was provided for the next available meeting, at which the first Final Order was vacated, and the Board reheard Proenza-Sanfiel’s case anew. There was no due process violation in the Board doing so. Indeed, had the Board not done so, then Appellant would have grounds to complain to this Court.

14. The Board attorney properly explained that the Board’s action in vacating the first Final Order and proceeding to reconsider the case anew did not violate constitutional prohibitions against double jeopardy. Because the first Final Order was vacated, both it and the Board deliberations that it memorialized were rendered a nullity. Proenza-Sanfiel then received a full and fair hearing, at which he was present and able to participate, and at which the Board painstakingly reviewed each challenged finding of fact and conclusion of law. Although it is true that his notification letter indicated that an "informal hearing" would be held on his case, such a clerical error does not rise to the level of reversible error where it is clear that he already had a formal hearing before a DOAH Administrative Law Judge, and the Recommended Order and Exceptions in his case were to be considered by the Board, and he received the appropriate consideration in both hearings.

15. The terms and conditions of the probationary period imposed were within the Board’s statutorily granted authority and are crafted to address concerns the Board had with Appellant’s professional responsibility.

See section 464.018(2)(g), Florida Statutes..

16. The terms and conditions of the probationary period which include attendance at courses in law and ethics serves the purpose of re-educating the licensee in the professional responsibilities he has toward all patients whose confidential records he will have access to. Section 464.018(2)(g), Florida Statutes.

17. The Board of Nursing was within its statutorily granted power to impose an administrative fine and costs of investigation and prosecution. Sections 464.018(2)(e) and 455.227(3) [now 455.624(3)1, Florida Statutes.

18. Although the issuance of the Final Order in this case exceeded the statutory time limit of ninety days, Appellant has failed to demonstrate the prejudice that such a delay caused. Therefore, the "harmless error" analysis applies, and the Final Order of the Board should be affirmed in all respects.

 

 

ARGUMENT

 

Argument I

Proenza-Sanfiel’s first argument on appeal asserts that the Order of Emergency Suspension of his license "was made beyond the scope of law" because he had not committed a violation while in the practice of nursing nor had he committed a violation relating to any patient that had been treated by him. His argument, however, ignores the statutory prohibition against releasing patient information to third parties and the very real policy reasons for applying that prohibition even outside the health care delivery system.

Section 455.241(2), Florida Statutes (1995) states that any patient records created pursuant to subsection (I) of that provision "may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care providers involved in the care and treatment of the patient, except upon written authorization of the patient." Although subsection (1) clearly indicates that records are created by those who "make[l a physical or mental examination of, or administer treatment or dispenses legend drugs to, any person", language in subsection (2) does not limit the duty of confidentiality to just the health care practitioner who created the record.

Rather, the language of subsection (2) is written in such a way that it binds all health care providers, and their agents, from furnishing such records or discussing the content of those records with any third parties not otherwise specified. Nor does subsection (2) limit the duty of confidentiality to only "at work" times or to only those patients that the health care practitioner is directly responsible for. It is the prohibition in section 455.241(2), Florida Statutes, that Proenza-Sanfiel violated, and for which he has been punished by the Board of Nursing.

Appellant’ s interpretation of the statute is that if he is not working as a nurse when the conduct takes place, or if the patient is not his patient, the duty to maintain confidentiality does not apply to him. Such an interpretation flies in the face of the plain language of the statute and the obvious intent of the legislature to promulgate a policy for health care practitioners that makes the protection of patient confidentiality the duty of any and all health care licensees who come into contact with patient records, regardless of time, place or circumstances. Proenza-Sanfiel’s interpretation of the statute would mean that a nurse who left his shift at the hospital in the afternoon would no longer be under a duty to maintain the confidentiality of patients he had cared for that day; similarly, his interpretation would also permit the revelation of confidential patient information by health care practitioners who had access to the information but were not directly involved in the care of the patient. Such an interpretation is insupportable.

As Appellant has candidly admitted, he knew what he was looking at when he encountered the confidential patient psychiatric records on the computer hard drive: "I can’t believe what my eyes see. This information is confidential, my training as a nurse tells me. I work in the psychiatric field, cannot believe what I see, patient names, address, phone numbers and other personal information." (T: 63; I: 199) He knew that he had to maintain the confidentiality of those patient records and he knew that they should not have been left on a computer hard drive which was accessible to the public:

"How in the world can anyone place electronic data [of such] importance in electric format and not protect it with a few simple strokes or readily available encryptive software or at least a password....this is definitely negligent behavior. No one should have access to this data...". (T: 63; 199) Yet, even knowing all this to be the case, Proenza-Sanfiel affirmatively contacted the news media, and carelessly permitted the information to be accessed by these third persons. Incredibly, he now argues that he is not culpable because the patients whose information he released to the media were not his patients, the records were not created by him, and he was not working as a nurse when he bought the computer and when he violated the patients’ confidentiality.

The Administrative Law Judge and the Board of Nursing clearly found that such an argument was inconsistent with the plain language of section 455.241(2), Florida Statutes, and with the public policy which dictates that health care practitioners, regardless of their relationship or lack thereof with the patient, must maintain that patient’s confidentiality with only specified exceptions. This interpretation is consistent with the notion that an individual licensed by the State to practice a profession is held to the standards of that profession even when he or she is acting as a private citizen rather than in their professional capacity. In a recent case, the Florida Supreme Court commented on such a situation by noting that "when lawyers are litigants they do not cast aside the oath they take as an attorney or their professional responsibilities." The Florida Bar v. Cibula, Case No. 89,551 (Fla. November 25, 1998). Similarly, a nurse, or any health care practitioner, may not repudiate his statutory professional requirement to maintain patient confidentiality just because he does not happen to be working as a nurse when he comes in contact with the patient record. No such interpretation could have been contemplated by the Legislature nor should any such be countenanced by this Court.

 

Notwithstanding any wrongdoing or negligence on the part of Charter,or any confusion of law enforcement and other agencies, Proenza-Sanfiel was under a duty to maintain the confidentiality of those files until he had placed them safely in the hands of either their statutory owner (Charter) or the appropriate regulatory authorities (Agency representatives). This he did not do. Indeed, when he finally reached an Agency representative and was asked to turn over the computer to either Charter or the Agency, he refused. (I: 178; T: 13-14, 19, 83) As a second issue in his Argument I, Appellant asserts that the Emergency Order issued against his license did not comport with the applicable provisions of sections 120.52 and 120.54, Florida Statutes. As a preliminary matter, it should be noted that Appellant did not appeal the Emergency Order below. Therefore, he has waived any challenge to its scope or whether it satisfied the requirements of section 120.54(4)(a)3.,Florida Statutes. That provision states that the agency’s determinations of "immediate danger, necessity and procedural fairness shall be judicially reviewable." A petition for judicial review of an Emergency Order must be filed within 30 days of the filing of the Order. That time period is jurisdictional, and failure to file the appeal leaves the Court without jurisdiction to hear an attack on that order. Guest v. Department of Professional Regulation, Board of Medical Examiners, 429 So. 2d 1225,

1227 (Fla. 1st DCA 1983). By failing to exercise his judicial review rights on the Emergency Order, Proenza-Sanfiel has waived any complaint he has regarding its sufficiency.

Areument II

Appellant’s second argument claims error by the Department forfailing to demonstrate the existence of "privity" between Proenza-Sanfiel as a nurse and the patients whose records were contained in the computer hard drive. Yet, as argued above, no such "privity" is required in section 455.241(2), Florida Statutes, which delineates the duty to maintain patient

record confidentiality. Rather, the statute merely states that any record created pursuant to section 455.241(1) must be maintained as confidential.

This admonition applies to all licensees under Chapter 455, which includes nurses. See sections 455.01(4), Florida Statutes ("’Health care practitioner’ means any person licensed under ...chapter 464...".) [now section 455.501(4), Florida Statutes.]

Areument III

Proenza-Sanfiel asserts in Argument III that the Agency failed to prove that he violated patient confidentiality because "no patient has come forward or has been identified as being identified by the nurse and no information what so ever has been identified as to belonging to any individual or originating from the computer" while in his care. (AIB: 26) This argument is a restatement of his Argument I and the Department incorporates the response to that argument above.

As the facts of this case demonstrate, Proenza-Sanfiel was the conduit through whom television reporters, camera personnel and other media representatives were exposed to confidential patient records. It is unrebutted on this record that media personnel had access to and were able to read the records contained on the computer hard drive, and were able to identify individual patient names, due to Proenza-Sanfiel’s actions. (T: 78-81; I: 73,201) At least one patient was actually contacted by the media. (I: 73)

Proenza-Sanfiel provided this confidential information to the media representatives resulting in a breach of the confidentiality and the invasion of the privacy of the patient or patients who were contacted as a result of

Proenza-Sanfiel’s actions. Therefore, Proenza-Sanfiel is incorrect when he asserts that "no information what so ever has been identified as to belonging to any individual or originating from the computer while under the care of the taxpayer [himself]." This statement is belied by the stipulated facts in this case. Whether a patient complains or not, the Department of Health is charged with enforcing the provisions of section 455.241, Florida Statutes,and is mandated to investigate an alleged breach of confidentiality. A patient complaint is not necessary to go forward on an investigation.

Appellant next argues that the news sources quoted at hearing were hearsay inadmissible over objection in a civil action. Even assuming that

such an argument were possible, it should be noted that Appellant did not object to the videotapes entered into evidence at hearing. Those videotapes comprise the strongest evidence to demonstrate that unauthorized members of the news media had access to and were able to read confidential patient records, such that they were able to later contact a patient whose records were contained on the computer hard drive. The videotapes of the news reports regarding Proenza-Sanfiel’s access to the computerized patient records were admitted into evidence in the hearing below without objection.

(T: 15- i 9) This Court should decline to consider Proenza-Sanfiel’s hearsay objection to the "news media sources" under the principle articulated in Allstate v. Gillespie, 455 So. 2d 617, 620 (Fla. 2d DCA 1984), in which the court stated:

A litigant may not sit on his hands, fail to voice his objections, and then claim prejudice when a final judgment is entered which may adversely affect him. Furthermore, he may not raise his objections for the first time on appeal. 

(Citations omitted); accord, E. J. Associates, Inc. v. The John E. and Aliese

Price Foundation Inc 515 So. 2d 763, 764 (Fla. 2d DCA 1987).

 

Appellant also argues that the Department’s witnesses, Mr. Ricci and Mrs. Everett, "reveal no disclosure of information" in their testimony. While it is true that Proenza-Sanfiel did not reveal confidential patient information to either of these individuals, it is clear on the record that Appellant spoke with both of them after confidential patient information had been revealed to the news media representatives. That neither of these witnesses received confidential information does not negate the release of that information to other nauthorized persons.

Argument IV

For his fourth claim of error, Appellant asserts that he was not "properly provided" "referenced exhibits of news reports" "per rules of discovery." Appellant fails to explain this claim fully so that the Department understands which rules he believes to be violated, and whatwas improper about the provision of the news report exhibits, the videotapes.

Again, no such objection to the manner in which these exhibits were, or were not, provided, was raised below and the issue should not be raised for the first time on appeal.  

(Citations omitted); accord, E. J. Associates. Inc. v. The John E. and Aliese

Price Foundation, Inc., 515 So. 2d 763, 764 (Fla. 2d DCA 1987).

Appellant also argues that the Department’s witnesses, Mr. Ricci and Mrs. Everett, "reveal no disclosure of information" in their testimony.

While it is true that Proenza-Sanfiel did not reveal confidential patient information to either of these individuals, it is clear on the record that Appellant spoke with both of them after confidential patient information had been revealed to the news media representatives. That neither of these witnesses received confidential information does not negate the release of that information to other unauthorized persons.

Argument IV

For his fourth claim of error, Appellant asserts that he was not "properly provided" "referenced exhibits of news reports" "per rules of discovery." Appellant fails to explain this claim fully so that the Department understands which rules he believes to be violated, and what was improper about the provision of the news report exhibits, the videotapes.

Again, no such objection to the manner in which these exhibits were, or were not, provided, was raised below and the issue should not be raised for the first time on appeal. Allstate, 455 So. 2d at 620.  

Similarly, he implies that the Department "switched" from the news reports actually aired to master copies of nonaired news footage. Again, Proenza-Sanfiel did not object to the use of the tape as it was presented for identification. Indeed, Appellant’s counsel below affirmatively stated "no objection" to each and both of the videotapes being entered into evidence a total of five times on the record. (T: 15, line I; T: 15, line 21, T: 17, line 16; T: 18, line 12; T: 19, lines 6-7). The final assertion of "no objection" came following a discussion that the television station provided a "dub of the master tape" because of the lack of clarity in their original copy of the broadcast. (T:18-19) Appellant should not now be heard to complain of evidence that he acquiesced to at hearing.

Argument V

Appellant next complains that the Department acted "capriciously" in charging him with violations of Chapter 464, when he was "acting as a Law abiding citizen" by reporting "evidence" against Charter Hospital, pursuant to section 455.227(1)(i), Florida Statutes. Appellant’s assertions, however,misrepresent what really happened. First, the Department did not charge him with violations because he was reporting evidence against Charter Hospital; he was disciplined because he released confidential psychiatric patient records to persons unauthorized by law to have access to those records. Second, if he thought he had "evidence" against Charter Hospital and he could not get any government agency to pay attention, his duty was to protect the confidentiality of those patient records until such time as an appropriate authority asked for them to be transferred to it. It was not professionally responsible to "go public" by calling all the local television stations and creating a media frenzy that resulted in the violation of the confidentiality of the patient records.

Finally, it should be noted that the Department of Health does not regulate facilities such as the Charter Hospital in this case. (S: 6) Instead, such allegations are reviewed by the Consumer Assistance Unit of the Division of Health Quality Assurance in the Agency for Health Care Administration. The Agency regulates Medicare and Medicaid programs and health care facilities; the Department of Health and the Board of Medicine regulate licensed professionals such as Proenza-Sanfiel.

Therefore, the Department did not act capriciously in failing to charge Charter Hospital with any violations, because the Department had no jurisdiction over the hospital. Any dissatisfaction with an investigation into a health care facility should be directed to the Agency for Health Care Administration, Division of Health Quality Assurance, and not against the Department of Health. As a practical matter, it is clear on this record that the Agency did address these matters with Charter Hospital, and found that "the facility has procedures in place to protect patient confidentiality." (S-5)

The Department had no jurisdiction over enforcement of statutory requirements against Charter. The Department’s proper enforcement of statutory requirements against Proenza-Sanfiel was not, therefore, capricious.

Argument VI

In his sixth argument on appeal, Appellant raises three procedural issues. First, he claims that the Agency failed to respond "in a manner prescribed by law to the exceptions submitted by the nurse...". (AIB: 28) Appellant does not cite to what "manner prescribed by law" the Agency failed to follow, nor does he even cite the law that sets forth such "manner" of response. Indeed, Proenza-Sanfiel can cite to no specific law requiring that the Department respond to exceptions filed by a licensee to a recommended order following a DOAH hearing. Yet, this record demonstrates the Department counsel’s response to the exceptions when necessary during the discussion comprising numerous pages of the transcript of the hearing. (SS: 47-1 73)

He also asserts that the Department failed to act on his multiple requests for reinstating his license following its emergency suspension.

 Even assuming that these requests for reinstatement were properly presented for Department response and determination, an emergency suspension order remains in effect pending the formal suspension or revocation hearing and final disposition thereof. Lerro v. Department of Professional Regulation,

388 So. 2d 47 (Fla. 2d DCA 1980). Based upon the Lerro decision, the original findings of an immediate danger to the public are presumed to be ongoing unless there occurs a significant change in circumstances or until a final order is entered which disposes of the underlying charges. Proenza-Sanfiel never properly petitioned for, nor provide legally sufficient reasons for, a lifting of the suspension order and reinstatement of his license. There was no error by the Department in failing to act upon his casual requests to do so. Indeed, one such approach from counsel for Proenza-Sanfiel sounded more like an offer to initiate settlement discussions than a Motion to Modifyor Vacate the Emergency Order: "[M]y client ... would like to have his emergency suspension lifted. Please advise me on ... what steps need to be taken to accomplish this and maybe we can settle this without having [a] hearing...". (S-l) There was no error by the Department in leaving the Emergency Suspension in place during the pendency of the underlying case.

Appellant also challenges that the Final Order in his case was issued beyond the ninety-day period set forth in the law. Section 120.569Ci),Florida Statutes. The Recommended Order was submitted by the Administrative Law Judge in this case on October 29, 1997. (I: 115) The case was place on the agenda and considered by the Board of Nursing at its December 11, 1997 meeting. (SS: 1) The Final Order issued from that meeting was filed on February 2, 1998. (I: 138) Despite the inevitable delays of dealing with such matters over the holidays in November, December, and January, this original Final Order was a mere six days later than the statutory time limit.

The mere violation of a statutory time limit does not end the inquiry however. In Department of Business Regulation v. Hyman, 417 So. 2d 617(Fla. 1982), the Supreme Court considered whether an agency’s failure to timely file a final order rendered the order unenforceable. The Court concluded that the delay amounted to harmless error because the untimely rendition of the order did not result in the impairment of either the fairness of the proceedings or the correctness of the action. Therefore, the Court concluded, Human was not prejudiced by the delay. Furthermore, the Court noted that agencies could be held accountable in mandamus for any substantial delay beyond the 90-day period. 417 So. 2d at 673.

The decision in Hyman, when applied to the facts of this case,demonstrate that the "harmless error" result must apply. The delay in this case was de minimus, a mere six days. Thus, although there was a violation of the time limit in section 120.57(1)(j), Florida Statutes, it is not enough for Proenza-Sanfiel to assert the error, he must also assert prejudice and then demonstrate the prejudice that he claims. He has not done so, and this Court should find that the delay herein was harmless error. See also, Carter v. Department of Professional Regulation, 633 So. 2d 3 (Fla. 1994).

Appellant does not make clear whether his complaint of untimeliness of the Final Order also deals with the issuance of the Final Order which is under appeal. The original Final Order was filed on February 2, 1998. When the Department was notified that Appellant failed to get notice of the hearing at which his case was considered, the matter was placed on the agenda of the next Board of Nursing meeting, February 12, 1998. Proenza-Sanfiel had notice that his case was to be heard at that meeting. (S-2) Atthat meeting, the original Final Order in his case was vacated. (I: 167; SS:27) Then, the case was reheard de novo, and a new Final Order was filed on May 26, 1998. (I: 167)

Appellant has also failed to demonstrate the prejudice that any delay in the issuance of the new Final Order may have caused him. Indeed, the second proceeding and the resultant delay there-from were for Appellant’s benefit. His constitutional rights to due process required that the Board vacate the original order so that he could receive both notice and an opportunity to be heard before the Board rendered its final decision.

Therefore, he is not entitled to any remedy where, even if there were error, and under the analysis in Hyman Carter. such must be considered harmless.

 

Argument VII

Appellant’s seventh argument on appeal claims that the Department acted outside the scope of its legislatively delegated authority under section 120.52(8)(a) through (g), Florida Statutes, by "attempting to create [a]rule...". (AIB: 28) It is not clear from Appellant’s brief argument what rule he thinks the Department is attempting to create. Contextually, however, the Department believes that Appellant is challenging the Department’s and the Board’s power to interpret the statutory provisions of Chapters 455 and 464 to prohibit his release of confidential patient records to unauthorized persons even when he is not actively practicing in his capacity as a nurse. The interpretation argument has been addressed previously in this Answer Brief, but not the authority of the Department and Board to do so.

There was no error by the Administrative Law Judge, the Department or the Board of Nursing in concluding that Proenza-Sanfiel violated sections 455.241(2) and 464.018(1)(1), Florida Statutes. Their reading of these twoprovisions is neither an unreasonable nor clearly erroneous interpretation of those statutes. Furthermore,

 

It is a settled principle of law that an administrative agency’s construction of a statute it is charged with enforcing is entitled to substantial deference. Accordingly, courts will decline to overturn that construction except for the most cogent reasons, or unless clearly erroneous, unreasonable, or in conflict with some provision of the State’s Constitution or the plain intent of the statute.

Carter v. Department of Professional Regulation, Board of Medicine, 550

So. 2d 494, 495 (Fla. 1St DCA 1989). Appellant has made no showing that the Board’s interpretation of these statutory violations as applied to him are clearly erroneous, unreasonable, or in conflict with applicable constitutional provisions.

Argument VIII

Proenza-Sanfiei’s final argument on appeal asserts that the Board of Nursing failed to follow either "the spirit or direction of law" when it issued a second Final Order in his case. He asserts that such actions were an attempt to deny him his rights to appeal. Yet, he is before this Court exercising his rights to judicial review of the Board’s Final Order. Neither the Department nor the Board, by their actions, in any way prevented Appellant from exercising his appellate rights. His citation to Brooks v.Department of Professional Regulation, 578 So. 2d 381 (Fla. 1st DCA 1991)only supports the actions of the Department and the Board below. In Brooks, the court reversed a Final Order of the Board of Nursing entered after the Department failed to send a prior notice of the meeting to the Respondent, Brooks. That is not the case with Proenza-Sanfiel. When it became apparent that he had not received notice of the first Board meeting at which his case was considered, the case was placed on the agenda of the next Board of Nursing meeting. He was sent notice of the case being heard at the next Board meeting (S-2) and he had his opportunity to be heard before the Board at that time.

 

 

CONCLUSION

Based on the foregoing, the Appellee, Department of Health,respectfully requests that this Honorable Court affirm the Final Order of the Board of Nursing in all respects.

Respectfully submitted,

 

Kathryn L. Kasprzak

Senior Attorney Florida Bar No.0937819

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317

(850)414-7166 SUNCOM 994-7166 FAX (850)414-1989

 

 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by overnight mail service to Jose N. Proenza-Sanfiel, Appellant pro se, 4210 POW’s and Mia’s Memorial Drive, St. Cloud, Florida 34772-8142, this 11th Day of January, 1999.


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