ORDER TRANSMITTAL FORM.

ALL INTERESTED PARTIES. 

DEPARTMENT OF HEALTH

CLIENT SERVlCE UNIT / ORDER PROCESSING : NURSING

 NUMBER OF ORDERS ATTACHED ( 1 )

 DATE FILED FEBRUARY 2nd 1998

 This MATTER came before the Board of Nursing (hereinafter "the Board") for Final action pursuant to Section 120.57(1)(j), Florida Statutes, at a duly-noticed Public meeting held on December 11, 1997, in Tampa, Florida, for the purpose of Considering the Recommended Order issued by the Administrative Law Judge in the Above-styled case. Reginald Dixon, Esquire, represented the Petitioner. The Respondent was not present at the Board meeting.

After a review of the complete record in this matter, including consideration Of the Administrative Law Judge’s Recommended Order, a copy of which is Attached hereto as Exhibit A, the exceptions filed by Respondent, and the Arguments of Petitioner, the Board makes the following findings and conclusions:

RESPONDENT’S Exceptions

Respondent’s Exceptions number 1 through 5, are rejected on the grounds That the findings of the Administrative Law Judge in the paragraphs of the Recommended Order to which the exceptions are made are supported by competent substantial evidence. Respondent’s exception numbered 6 is not an Exception to any finding of fact or conclusion of law, but is a plea in mitigation. The Board takes the plea into consideration in determination of penalty.

FlNDlNGS OF FACT

1. The Administrative Law Judge’s findings of fact are hereby approved, Adopted, and incorporated herein.

2. There is competent, substantial evidence to support the Administrative Law Judge’s findings of fact as adopted by the Board.

CONCLUSlONS OF LAW

1. The Board has jurisdiction over this matter pursuant to the provisions of Sections 120.569 and 120.57(1) and Chapter 480, Florida Statutes.

2. The Administrative Law Judge’s conclusions of law are hereby approved, Adopted and incorporated herein.

3. There is competent substantial evidence to support the Board’s findings and conclusions.

RECOMMENDATlONS AND PENALTY

 IT IS THEREFORE ORDERED AND ADJUDGED:

 The recommendations and penalty recommended by the Administrative Law Judge are approved

Counts IV, VI and VII of the Administrative Complaint are dismissed.

Respondent must pay an administrative fine of $500 plus administrative Costs of $986.03 within sixty (60) days of the Board Order. The licensee has the Responsibility to document financial hardships prior to the due date of the fine Payment.

Respondent’s license is suspended for a period of eighteen (18) months, with Credit for time of suspension already served since the Emergency Suspension Order Dated January 31, 1997. Thereafter, Respondent’s license is placed on probation for a period of five years subject to the following terms:

The licensee shall not violate chapters 455 or 464, Florida Statutes, the rules Promulgated pursuant thereto, any other state or federal law, rule, or regulation Relating to the practice or the ability to practice nursing.

The licensee must report any change in address or telephone number, Employment, employer’s address or telephone number, or any arrests in writing by Certified mail within 5 working days to the Probation Supervisor at the Board of Nursing Office. 904/359-6331. 4080 Woodcock Drive, Suite 202. Jacksonville, Florida 32207.

The licensee shall submit written reports to the Probation Supervisor at the Board of Nursing office, which contain the licensee’s name, license number, and Currents address; the name, address, and phone number of each current employer, Whether employed as a nurse or not; and a statement by the licensee describing his Employment. This report shall be submitted to the Probation Supervisor every three (3) Months in a manner as directed by the Probation Supervisor.

All current and future settings in which the probationer practices nursing shall be promptly informed of the licensee’s probationary status. Within five days of the receipt of this Order, the licensee shall furnish a copy to his nursing Supervisor or supervisors, if there are multiple employers. The supervisors must acknowledge this probation to the Board probation supervisor in writing on Employer letterhead within ten days. Should the licensee change employers, he must supply a copy of this Order to his new nursing supervisor within five days. The new employer shall acknowledge probation in writing on employer letterhead to The Board probation supervisor within ten days. The licensee shall be responsible for assuring reports from the nursing supervisors will be furnished to the Board Probation supervisor every three-(3) months. That report shall describe the Licensees work assignment, workload, level of performance, and any problems. Any report indicating an unprofessional level of performance shall be a violation of Probation.

Should the licensee desire to return to school to attend a nursing program, The licensee shall provide a copy of this Order to the Program Director prior to beginning class. The Program Director must inform the Board in writing on school Letterhead, acknowledging receipt of a copy of the Order. If the school is willing to Comply with the licensee’s conditions of probation during clinical experiences, that should be specified. Otherwise the probation shall be tolled. Any requests for Modification or accommodation by the school or the probationer shall be considered on an individual basis by the Board.

The licensee shall enroll in and successfully complete courses in legal Aspects of nursing, nursing ethics and anger/stress management. This shall be in Addition to other normally required continuing education courses. Verification of Course content and course completion must be submitted to the Probation Supervisor within six months from the date of this Order.

If the licensee leaves Florida for thirty (30) days or more or ceases to practice Nursing in the state, this probation shall be tolled until the licensee returns to active Practice of nursing in Florida. Then the probationary period will resume. Unless this Order states otherwise, any fines imposed or continuing education required must be Paid or completed within the time specified and are not tolled by this provision. Self-Reports and employer reports are not required during the time probation is tolled. Working in nursing without with the notification to the Board is a violation of this Order.

The terms of this Order are effective as of the date this Order is filed with the Clerk for the Department of Health. The Board office will send the licensee information Regarding probationary terms; however, failure of the licensee to receive such Information DOES NOT EXCUSE COMPLlANCE with the terms of this Order.

This Final Order shall become effective upon filing with the clerk of the Department of Health.

DONE AND ORDERED this 12th day of 1998.

Board of Nursing Willie Edwards ARNP

 

NOTlCE OF RlGHT TO JUDlClAL REVlEW UNLESS WAlVED

Pursuant to Section 120.569, Florida Statutes, any substantially affected person Is hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the clerk of the Department of Health and by filing the filing fee and one Copy of the Notice of Appeal with the District Court of Appeal within 30 days of the date This Final Order is filed.

CERTlFlCATE OF SERVlCE

I HEREBY CERTlFY that a true and correct copy of the foregoing has been Furnished by U.S. Mail to JOSE PROENZA-SANFIEL, 4210 Pow's and Mia’s Memorial Drive, St. Cloud FL 34772-8142 and Charles B. Tiffany, Esquire, 120 Broadway, Suite 203, Kissimmee FL 34741, and by inter-office mail to Reginald Dixon, Staff Attorney, Agency for Health Care Administration, 2727 Mahan Drive, Tallahassee, Florida 32308-5403, this 2nd day of February of 1998.

 

F:\USERS\ADMIN\LEE\BON\1 2-97MTG\SANFIEL.ORD


Webmaster's Comments.

Please note that I was not present during the issuance of this final order since the AHCA very conveniently did not notify me to appear at such an important time.

This is the punishment for caring about the taxpayer and the patients confidentiality. I will have to pay a fine, pay for the cost of my own excecution and be on probation for 5 Years more like a common criminal than anything else. Not only will a red flag be raised as soon as I apply for any job but who would really want any extra work every three months having to submit " extra government paperwork " and this certainly makes me a candidate for " I got you by the gonadas " so do as we please by employers or the AHCA whom seems to have a special kind of like for my rear end..!! What a way to extend the unjust exercise of power seen on this case. (Some one please check the word anarchy and depotism on the dictionary quick)

Cost: $500.00 + $986.03 = $1386.03 This does not include the cost of the

  1. Nursing Ethics and Law educational Course. ( Cost Time unknown )
  2. Anger Management educational Course. ( Cost and time unknown ) but I guess that the anger management could come in handy cause by now I really feel like choking the living daylights out of some one. But who is that some one when the system is cowardly faceless?
  3. Income lost for 1 1/2 Years of suspension.
  4. All the costs incurred on fighting the case by me.
  5.  

  6. The mental anguish and character defamation costs that I have been subjugated to endure. ( there is no price for this ).
  7. The extended punishment. This extended punishment was netted out during the Second final order ( an Oxymoron ) and it they specifically looked at my work history tailoring it to hurt me the most. Also if you notice it is a direct affront to the guarantees of the constitution of the persuit of happiness by anchoring me down to ONLY ONE EMPLOYER and under direct suppervision plus the other little nisances. This was not found on the original ( 1st final order ) Do you think they got the hot's for me or not?


This is the part that shows you care a little extra. Please take the time and go to some of these areas and let them know how you feel, and what they can do to help. Thanks so much. Also, contact any other person you wish. It is a free country still. SPECIALLY in my place!!

E-Mail Address for Nursing Organizations

Email Address for US Senate………………

E-Mail Address for US House of Representatives

 

Is a BEAR of a job but if you like you can also reach the whole Nation trough the air ways via Radio and TV Links

 

We the people can make changes.!!

And if you E-Mail this Journalists will help us all.

 

 

 


************* NOTE OF INTEREST *********************

I have been caring for the American Way of life for a while now.... you can see the other part of me on the other Web Site that I also maintain. That Web-Site deal's with the POW/MIA Issue Please visit it and get involved there are still men left behind and they need your help also. Visit " THE REAPER'S EDGE A POW's SCREAMED ECHO IN CYBERSPACE "


Back to starting page.

.Contacting Jose via E-ail..Mailto:onenurse@noangle.com

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STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

 

DEPARTMENT OF HEALTH,

BOARD OF NURSING,

Petitioner,

 

Vs.

JOSE N PROENZA-SANFIEL,

Respondent.

Case No. 97-2453

 

Recommended ORDER

A formal hearing was held in Orlando, Florida, on August 20, 1997, before the Honorable Daniel M. Kilbride, an Administrative Law judge with the Division of Administrative Hearings.

APPEARANCES for Petitioner:

For Respondent:

Reginald D. Dixon, Esquire

Laura P. Gaffney, Esquire

 

 

Agency for Health Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

 

Charles B. Tiffany, Esquire

120 Broadway, Suite 203

Kissimmee, Florida 34741

 

 

STATEMENT OF THE ISSUES

Whether Respondent committed the acts alleged in the Administrative Complaint filed by the Petitioner, and if so, What penalty should be imposed?

PRELIMINARY MATTERS

On January 31, 1997, Petitioner issued an emergency order suspending the Respondent’s license to practice nursing.

On April 4, 1997, Petitioner filed an administrative Complaint against the Respondent alleging the same facts as set Forth in the emergency order and charging the Respondent with Unprofessional conduct in the practice of nursing by violating The confidentiality of patients’ records and also with being Unable to practice nursing with reasonable skill and safety to Patients- Respondent denied the allegations and requested a Formal hearing. Respondent also filed an Answer to the Administrative Complaint and a Motion to Strike. This matter was referred to the Division of Administrative Hearings for Adjudication on May 16, 1947. Discovery ensued, and Petitioner Filed a Notice (motion) of Compelled Mental and Physical Examination on June 4r 1997. The motion was denied.

At the hearing, Petitioner voluntarily dismissed Count I of The Administrative Complaint; Petitioner called four (4) Witnesses and offered into evidence three (3) exhibits.

 

Respondent testified in his own behalf and offered no exhibits into evidence. All exhibits were admitted.

The transcript was prepared and filed on September 2, 1997. Petitioner filed its proposed recommended order on September 12, 1997. Respondent filed his proposals on September 29r 1997.

Both parties’ proposals have been given careful consideration

FINDINGS OF FACT

1. Petitioner, Department of Health is the state agency

Charged with regulating the practice of nursing pursuant to

Chapter 20r Florida Statutes; Chapter 455, Florida Statutes; and

 

Chapter 464, Florida Statutes.

2. Respondent is, and has been at all times material

Hereto, a licensed registered nurse in the State of Florida,

Having been issued license number RN 2523862. Respondent’s last Known address is 4210 Pow’s and Mia’s Memorial Drive, St. Cloud, Florida 34772-8142.

3. As a licensed registered nurse, Respondent is governed By Chapter 455 and 464, Florida Statutes, including section 455.667(5), formerly 455.241(1), Florida Statutes, and Chapter 59S, Florida Administrative Code.

4. At a date unknown, Respondent obtained possession of a Computer from a secondhand thrift store. It was subsequently Determined that the hard drive contained 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"). Charter is a sixty- (60) bed, full-service, Psychiatric treatment hospital where patients are examined, diagnosed and/or treated for drug, alcohol and/or mental health Issues.

5. Respondent has prior experience as a psychiatric nurse and was well aware of the possible ramifications of allowing confidential psychiatric patient information to be accessed or viewed by unauthorized persons.

6. At no time did Charter authorize the release of, or Place in Respondent’s possession, the computer and/or database Which identified confidential patient information.

7. However, Charter failed to ensure that the confidential Information contained on the hard drive had been erased prior to its release to the thrift shop.

8. Respondent contacted law enforcement agencies in an

Attempt to have them investigate Charter for the alleged

Negligence in the release of the data. When he could not obtain their involvement, he turned to the news media.

9. Respondent contacted multiple news media in the Orlando

Area and allowed some members of the news media access to the

Respondent indicated to them that they were to blur the information if a news story was going to be aired.

10. As a result of the Respondent’s allowing news media access to the confidential psychiatric records of the former Patients of Charter, two news reports aired in Orlando and its Adjacent viewing area on or about January 23, 1997.

11. In at least one of the foregoing news reports, a

Computer screen was shown to the general viewing public via

Videotape played over the air. Patient names as well as

Diagnoses were readily identifiable during the broadcast

12. The Media interviewed at least one former patient. He expressed that he was tremendously distraught over the Fact that his prior admission to the hospital was not kept Confidential and thus exposed to the public at large.

 

 

13. The Respondent appeared on both newscasts.

14. After acknowledging that it would be negligent for a Healthcare professional, who has a duty to maintain Confidentiality of patient information, to allow unauthorized Information Non-medical persons to view patient records, the Respondent Indicated that he did not have a duty to maintain the Confidentiality of the former patients of Charter because he was Not employed as a nurse at that time.

15. On or about January 24, 1997, representatives for the Agency spoke with Respondent regarding his possession of the confidential records located on the computer’s hard drive. The Agency representatives requested Respondent to return the confidential patient records to Charter or the Agency; Respondent Refused.

16. Kim Everett, Vice President of Risk Management for Charter, spoke with Respondent on or about January 24, 1997, Regarding Respondent’s returning the confidential patient records

to Charter. Respondent indicated that he would not return the Information to Charter and/or its representatives. Additionally, The Respondent indicated that he thought that he should be compensated for returning the computer and patient records to Chapter. Ms Everett advised Respondent that the information Belonged to the patients and that Charter would only reimburse

Him for the cost of the computer. Respondent indicated that he Would consider contacting the patients and selling the Information back to them. Ms. Everett again advised the Respondent that the information was not his and that he should Not contact the patients. At the conclusion of the conversation Information was still in the possession of Respondent.

 

17. Charter filed for injunctive relief in the Circuit Court of the Ninth Judicial Circuit, Orange County, and Florida. Own January 27, 1997, the Honorable John H· Adams, Sr., Circuit Court Judge, issued an Order Granting Plaintiff’s Motion for Temporary Injunction wherein the Court made the following Findings of Fact:

Patient confidential information subject to Restraint from disclosure under Section 349.459(9), Florida Statutes, is in the custody of persons not Unauthorized to possess this information.

 

b. That portion of such information have been Disclosed to third parties including the broadcast Media.

 

c. That there is an imminent risk of irreparable harm Of further disclosure of such confidential Information

 

18. Dr. Roger Goetz, M.D., an expert on the handling of Psychiatric records by health care professionals has opined that It is below the standard of professional care to allow Unauthorized non-medical persons access to confidential Patient Information However, this opinion was not supported by other Evidence and is not accepted.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has Jurisdiction over the subject matter and the parties. Sections 120.569 and 120.57(1), Florida Statutes.

20. Petitioner is charged with the regulation of the Practice of nursing. The Board of Nursing may discipline a Person found guilty of violating the provision of Section 464.018, Florida Statutes.

21. Petitioner must prove the material allegations Contained in the Administrative Complaint by clear and convincing Evidence. Ferris v· Turlingston, 510 So. 2d 292 (Fla. 1987).

 

6

 

22. Section 455.667(5), Florida Statutes, formerly 455.241(2), Florida Statutes, regarding confidentiality of

Patient records, provides that patient information:

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 or Treatment of the patient, except upon written Authorization of the patient.

 

23. The release of confidential psychiatric patient Information to unauthorized non-medical persons poses a

Substantial threat to the public. The Respondent admitted that He was well aware that the release of psychiatric patient Information to an unauthorized non-medical person would pose a Threat to the public as well as cause irreparable harm to the Patients. In fact, Respondent opined that it would be negligent Behavior for a person or an entity to allow third parties to have Access to such information.

24. Because Respondent was having trouble contacting the Proper authorities, he became angry and he decided to share his Discovery with members of the news media. However, Respondent

Thought he took measures to ensure his name was not used because He was afraid that, in his own words; it would "upset psychiatric Patients seeking me out." The Respondent then struck a deal with the news media that they could view the information to verify its Authenticity so long as they agreed to blur the information during the broadcast

 

25. As a result of the Respondent’s allowing the news media confidential patient information a news story was aired in the Orlando and adjacent viewing area wherein Confidential Patient information was clearly discernible. Additionally, at least one patient was contacted and interviewed by the media. This Patient was distraught over the fact that his Confidential Patient information was exposed to the public

 

26. The Respondent’s release of the confidential psychiatric patient information to the media was intentional, Regardless of Whether or not he intended for them to blur the Names.

27. This intentional release of confidential patient Information to the media was unprofessional and a violation of the statutes

 

28. When representatives from Charter and the Agency attempted to gain possession of the computer and the records from The Respondent, he became belligerent He indicated that he did not take kindly to being threatened, and refused their request.

29. Section 464.018(1)(1) provides that the Board of Nursing may discipline a licensee for violating Rule 59S-8.005(l)(e], Florida Administrative Code, by violating the Confidentiality of information or knowledge concerning a patient Petitioner has proved by clear and convincing evidence that Respondent violated Section 464.018(1)(1), Florida Statutes, by Violating Rule 598-8.005(1)(e)12, Florida Administrative Code.

30. Section 464.018(1) (1), Florida Statutes, provides that The Board of Nursing may discipline a licensee for violating Rule 59S-8.005(1) (e)12, Florida Administrative Code, by acts of

Negligence, gross negligence, either by omission or commission Petitioner has proved by clear and convincing evidence that Respondent violated Section 464.018(1)(1), Florida Statutes, by Violating Rule 59S-8.005(1) (e)12, Florida Administrative Code.

 

31. Section 464.018(1) (1), Florida Statutes, provides that the Board of Nursing may discipline a licensee for violating Rule 598-8.005(1)(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. Petitioner has failed to prove by clear and convincing evidence that Respondent violated Section 464.018(1) (1), Florida Statutes, by violating Rule 59S-8.005(1) (e)13, Florida Administrative Code.

32. Rule 59S-8.006(3), Florida Administrative Code, provides a penalty range for violations of 464.018(1)(1), Florida Statutes.

 

33. Section 455.227(1) (k) r Florida Statutes, provides that the Board of Nursing may discipline a licensee for failing to perform the statutory and/or legal obligations placed upon licensees pursuant to Section 455.241(2)

34. Respondent has proved by clear and convincing evidence that Respondent violated Section 455.227(1)(k), Florida Statutes, by failing to perform the statutory and/or legal obligations placed upon Respondent pursuant to Section 455.241(2)

35. Section 455.227(2), Florida Statutes, provides a penalty range for a violation of Chapter 455, Florida Statutes, of a reprimand, a fine of up to $5,000 per count, suspension, or permanent revocation of a license.

36. Section 464.018(1)(j) provides that the Board of Nursing may discipline a licensee for being unable to practice nursing with reasonable skill and safety to patients

37. Respondent has failed to prove by clear and convincing evidence that Respondent Violated Section 464.018(1)(j), Florida Statutes, by being unable to practice nursing with reasonable skill and safety to patients

 

RECOMMENDATION

 

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding the Respondent guilty on Count II for violating

Sections 464.018(1)(1), Florida Statutes, by k"owi"9ly violating Rule 598-8.005(1) (e)5, Florida Administrative Code; guilty on Count II pursuant to Section 464.018(1)(1), Florida Statutes, for knowingly violating Rule 595-8.005(1)(e) 112). Florida Administrative Code; not guilty of Count IV; guilty on Count V for violating section 455.241(2), Florida Statutes; not guilty on Count VI; and not guilty on Count VII.

It is FURTHER RECOMMENDED that the Board of Nursing dismisses Counts IV, VI, and VII of the Administrative Complaint and imposes the following discipline on the Respondent’s license:

administrative fine of $500; administrative costs of the Department; Eighteen (19) month suspension of license with credit for time of suspension already served; and five (5) Year probation under the term and conditions as the 80ard may find just and proper.

 

DONE AND ENTERED this 29th day of October, 1997, in Tallahassee, Leon County, Florida.

 

DANIEL M. KIlBRIDE

Administrative Law Judge

Division of Administrative Hearings

The De Soto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6947

 

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of October, 1997.

 

 

COPIES FURNISHED:

Laura P. Gaffney, Esquire

Agency for Health

Care Administration

2727 Mahan Drive

Tallahassee, Florida 32308

 

 

Charles B· Tiffany, Esquire

120 Broadway, Suite 203

Kissimmee, Florida 34741

 

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard

Building 6

Tallahassee, Florida 32399-0700

 

Dr. James Howell, Secretary

1317 Winewood Boulevard

Building 6, Room 306

Tallahassee, Florida 32399-0700

 

 

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.

 

 

STATE OF FLORIDA

AGENCY FOR HEALTH CARE ADMINISTRATION

AGENCY FOR HEALTH CARE

ADMINISTRATION,

PETITIONER,

 

JOSE PROENZA-SANFIEL

RESPONDENT

CASE NUMBER: 97-00006

ADMINISTRATIVE COMPLAINT

COMES NOW, the Petitioner, Agency for Health Care Administration hereinafter referred to as "Petitioner", and files this Administrative Complaint before the Board of Nursing against, JOSE PROENZA-SANFIEL, herein after referred to as "Respondent", and alleges:

1. Petitioner, Agency for Health Care Administration is the state agency charged with regulating the practice of nursing pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 464, Florida Statutes.

2. Respondent is, and has been at all times material hereto, a licensed REGISTERED Nurses in the State of Florida, having been issued license number RN 2523862. Respondent's last known address is 4210 POWs and Mia’s Memorial Drive, St. Cloud, Florida 34772-8142.

3. As a licensed registered nurse, Respondent is governed by Chapters 455 and 464,

Florida Statutes, and Rule 59S, Florida Administrative Code.

4. Section 455.241, Florida Statutes, regarding confidentiality of patient records, states in part that:

"(2) except as otherwise provided in Section 440.12(2). such records 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 we of treatment of the patient, except upon written authorization of the patient."

5. At a date unknown, Respondent obtained possession of a computer with a database containing confidential patient names, addresses, dates of admission, types of addiction, treatments, and psychiatric disorders for individuals treated at Charter Behavioral Health System Orlando (‘Charter’), a sixty-(60) bed, full service, psychiatric treatment hospital where patients ate examined, diagnosed and/or treated for drug, alcohol and/or mental health issues.

7. At all times material hereto, Charter has not authorized the release of nor placed in Respondent’s possession, the computer and/or database, which identifies confidential patient information.

On or about January 23, 1997, Respondent contacted multiple news media sources

and divulged his access to and the content of the confidential patient information from Charter.

9. Respondent advised media sources that he purchased the computer from Osceola

Opportunity Center at a cost of twenty dollars (%20.00).

10. Osceola Association of Retarded Citizens, a/k/a Osceola Opportunity Center is a workshop opportunity program for the mentally challenged wherein items are donated by the local community for subsequent resale through the center’s thrift store.

11. The Executive Director for Osceola Opportunity Center denies having any records

and/or contact with Respondent regarding the sale of a computer.

 

12. Respondent allowed news stations, WESH-TELEVISION, . (NBC), affiliated WESH-TV Newschannel 2 herein after Channel 2) and NEW CITY Communications OF FLORIDA, INC. (CBS), affiliated WCPX TV 6 herein after Channel 6), access to said confidential patient information

13. On January 23, 1997, Greg Fox, Channel 2 news, aired a report in Orlando, Florida, and its adjacent viewing area, wherein a computer screen was shown to the general viewing public via videotape played over the air. Said news report advised the viewing public that an unnamed nurse purchased a computer from Osceola Opportunity Center, a local thrift store, for twenty dollars ($20.00). Also reported was the assertion that upon the nurse’s access to the computer’s hard drive, the names of "psychiatric patients" were readily identifiable as well as their admission dates, types of addiction, treatments, and psychiatric disorders.

14. The news report additionally advised the viewing public :hat Charter maintains that the thrift store. Moreover, the thrift store indicated they had no they did not donate the computer to records of any purchase of a computer by the nurse at any time.

15. On January 23, 1997, Nicole Smith, Channel 6 news, aired a report in Orlando, Florida and its adjacent viewing area, wherein a computer screen was shown to the general viewing public via videotape played over the air. The news reporter interviewed an unidentified former patient of Charter who was tremendously distraught over the fact that his prior admission to the hospital was not kept confidential and thus exposed to the public at large.

16. The news media access, facilitated by the nurse, caused an unknown number of patients to be contacted by the news media. For all times’ material hereto, the unnamed nurse who appeared on both newscasts is the Respondent.

18. On January 23, 1997, representatives for the Agency spoke with Respondent regarding his possession of the confidential records located on the computer’s hard drive. The Agency representatives requested Respondent to return the confidential patient records to Charter or the Agency. However. Respondent refused.

19. On January 23, 1997, representatives for the Agency contacted Charter to coordinate efforts to preclude the release of the confidential information by Respondent to parties not entitled to access to said patient information. Charter’s representatives advised that their efforts to obtain Possessions of the confidential information from Respondent were unsuccessful.

20. On January 24, 1997, an Agency investigator from the Orlando Bureau of Investigative Services office made contact with Respondent. Respondent affirmed that he was the unnamed nurse that was the subject of the aforementioned news media broadcasts. The Agency investigator requested Respondent to relinquish the computer hard drive and/or all tangible; intangible records of patients from Charter to the Agency for Health Care Administration. Respondent advised that he was in Miami and refused said request.

21. Respondent, during his conversation with the Agency investigator, advised that he would not disclose his employment location in Miami and upon leaning of the Agency investigation against his license stated that any more threats of action against his license Hill result in the records either being given back to Charter or that he would put a large magnet on top of the computer to erase the records.

22. Respondent additionally advised the Agency investigator that he was a "former and "an activist" and that he "doesn’t take threats lightly" and that he "was prepared to Marine fight."

23. Upon termination of the conversation by Respondent and the Agency investigator, the confidential patient records remained in the possession of Respondent.

24. Kim Everett, Vice President of Risk Management for Charter, spoke with Respondent on or about January 24, 1997. As a result of said conversation, Ms. Everett executed an affidavit, which states in part:

  1. Respondent stated that he had patient information from Charter Hospital of Orlando on a computer he had purchased, that he was angry because the "government was trying to take away his license:’ and that the patient information was his property and he could do with it what he wanted.

 

 

B. I explained to Respondent that the patient information was not his property and asked him to return it to the Charter Hospital of Orlando. In response to that, Respondent said that he felt he should be compensated for the information, but that he was not trying to extort money or "anything like that." I told Respondent that the company would be willing to reimburse him for what he paid for the computer in exchange for his delivery of the computer and all of the patient information to Charter Hospital of Orlando, but that it would pay nothing more than that.

C. Respondent denied that he had released any of the patient's information to the news media. When I pointed out to him that I Understood a news station in Orlando, Florida had shown some of the patient information on a news broadcast, Respondent said he was aware of that because he had asked them to blur the last names of the individuals.

D. Respondent said at some point in our conversation that the information belonged to the patients and that "maybe I Respondent] should sell it back to them". I told him that I strongly encouraged him not to do that and that he should contact his lawyer before doing anything like that. He asked again for compensation for other patient information I told him again that the company would be willing to compensate him for what he paid for the computer in exchange for delivery of the computer and all the patient information to Charter Hospital of Orlando but nothing more.

 

E. Respondent finally said that he would just let the lawyers work it out. The call terminated at that point.

25. As a result of Respondent’s refusal to return the patient records of Charter, and the exposure of same to unauthorized sources by Respondent, Charter filed for injunctive relief in the Circuit Court of the Ninth judicial Circuit, Orange County, and Florida. On January 27, 1997, the Honorable John H. Adams, Sr., Circuit Court Judge, issued an Order Granting Plaintiffs Motion for Temporary Injunction wherein the Court made the following Findings of Fact:

1. Patient confidential information subject to restraint from disclosure under Section 349.459(9), Florida Statutes, is in the custody of persons not authorized to possess this information.

 

2. That portion of such information have been disclosed to third parties including the broadcast media

3. That there is an imminent risk of irreparable harm of further disclosure of such confidential information.

26. Furthermore, said clout granted an expedited discovery request by Charter to allow a deposition of Respondent on Thursday, January 30, 1997.

 

27. Respondent In a news report published in the January 29, 1997 Orlando Sentinel was quoted as stating that he will defy the court order issued by the circuit court and that he wants to be paid by Charter for the patient records in the amount of twenty thousand dollar ($20,000.00).

28. Dr. Roger Goetz, Director of the Physician’s Recovery Network ("PRN’) and consultant for the Agency, opined that the unauthorized release of names of patients who have received psychiatric treatment is a violation of reasonable practice standards and professional ethics of a licensed health we professionals. Furthermore, public exposure of patient information through media outlets is harmful to the patient, is cruel and abusive treatment of those who seek help, and has the potential to cause unnecessary disruption to patient care.

29. Additionally, Dr. Goetz further opined that the behavior of Respondent, as outlined above, mandates an immediate physical and mental examination.

On or about January 31. 1997, the Respondent’s license to practice nursing was suspended pursuant to Emergency Suspension Order.

Count I

31. Petitioner re alleges and incorporates by reference the allegations of fact contained in the foregoing paragraphs one (1) through thirty (30) as if fully stated herein.

32. Based on the foregoing, Respondent is subject to discipline pursuant to section 464.018(1)0), Florida Statutes, by knowingly violating Rule 59S-8.005(l)(e)3., Florida Administrative Code, by misappropriating supplies, equipment or drugs.

Count II

 

33. Petitioner re alleges and incorporates by reference the allegations of fact contained in the foregoing paragraphs one (1) through thirty (30) as if fully stated herein.

34. Based on the foregoing, Respondent is subject to discipline pursuant to section 464.018(1)(1), Florida Statutes, by knowingly violating Rule 59S-8.005(l)(e)5., Florida Administrative Code, by violating the confidentiality of information or knowledge concerning a patient.

Count III

35. Petitioner re-alleges and incorporates by reference the allegations of fact contained in the foregoing paragraphs one (1) through thirty (3 0) as if fully stated herein.

36. Based on the foregoing, Respondent is subject to discipline pursuant to section 464.018(1)(]), Florida Statutes, by knowingly violating Rule 59S-8.005(l)(e)12., by acts of negligence, gross negligence, either by omission or commission.

Count IV

37. Petitioner re alleges and incorporates by reference the allegations of Fact contained in the foregoing paragraphs one (1) through thirty (30) as if fully stated herein.

38. Based on the foregoing, Respondent is subject to discipline pursuant to section 464.018(1)(1), Florida Statutes, by knowingly violating Rule 59S-8.005(1Xe)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.

Count V

 

39. Petitioner re alleges and incorporates by reference the allegations of fact contained in

the foregoing paragraphs one (1) through thirty (30) as if fully stated herein. 40. Section 455.241(2), Florida Statutes, states, "Except as otherwise provided in Section 440. 13(2), such Inpatient] records 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 or treatment of the patient, except upon written authorization of the patient".

 

41. Based upon the foregoing, Respondent is subject to discipline pursuant to 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.

Count VI

 

42. Petitioner re alleges and incorporates by reference the allegations of fact contained in the foregoing paragraphs one (1) through thirty (30) as if fully stated herein.

 

43. Based on the foregoing, Respondent is subject to discipline pursuant to 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, or failing to comply with a lawfully issued subpoena of the department or agency, to wit: Section 955241(2), Florida Statutes, Rule 59S-8.005(l)(e)3·. Florida Administrative Code, Rule 59S-8.005(1)(e)5., Florida Administrative Code, Rule 59S-8 005(l)(e)l Z., Florida Administrative Code, and Rule 59S-8.005(l)(e)l 3.,Florida Administrative Code.

 

 

 

Count VII

44. Petitioner re-alleges and incorporates by reference the allegations of fact contained in the foregoing paragraphs one (1) through thirty (30) as if fully stated herein.

45. Based on the foregoing, Respondent is subject to discipline pursuant to section 464.0 L g(l)(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.

WHEREFORE, Petitioner respectfully requests the Board of Nursing to enter an order imposing one or more of the following penalties: revocation or suspension of the Respondent’s license, restriction of the Respondent’s practice, imposition of an administrative fine, assessment of costs, issuance of a reprimand. placement of the Respondent on probation, and/or any other relief that the Board deems appropriates.

SIGNED this 26th day of 1997

 

FILED Agency FOR

HEALTH CARE ADMINISTRATION

CLERK ,1997.

Douglas M. Cook,

lreCtof

 

 

Agency for Health Care

COUNSEL FOR PETITIONER:

Reginald D. Dixon

Legal Trainee

Agency for Health Care Administration

General Counsel’s Office - MA

Allied Health Section

Post Office Box 14229

Tallahassee, Florida 323174229

(904)487-9670

RDD/rd PCP: LB/LM DATE: 2-25-97

 

 

Lawton Chiles Governor

FLORIDA DEPARTMENT OF HEALTH

James T. Howell, M.D., M.P.H.D Secretary

 

Jose Proenza-Sanfiel

4120 POW & MIA Memorial Dr.

St. Cloud, FL 34772

 

 

Dear Mr. Proenza-Sanfiel:

January 23, 1998

Certified # P 342 128 721

Please take notice that the Florida Board of Nursing will conduct an informal Hearing with reference to your case at its regularly scheduled Board Meeting. This meeting will be conducted on Thursday, February 12, 1998 at the Holiday Inn Select, 2001 N. Cove Blvd, Panama City, FL, telephone (904) 769-0000.

This is your opportunity to speak to the Board concerning the allegation(s) in your case. Materials should have already been provided to the Agency’s prosecuting attorney prior to this meeting. The Board will not consider any materials that have not already been submitted to the prosecutor.

The meeting will begin at 8:30 a.m. if you desire to attend. If so, it is requested that you make your presence known upon arrival so that the board will be certain to give you the opportunity to testify on your behalf. Plan to be there for the entire day or until your case(s) is called before the Board.

If you need further information or clarification, please contact this office at (904) 858-6940.

Sincerely

 

G R Sweeten

Regulator Program

Administrator

 

 

 

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