
    B.B.A., Appellant, v. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellee.
    No. 90-150.
    District Court of Appeal of Florida, First District.
    June 14, 1991.
    Reese A. Waters, Jr., Jacksonville, for appellant.
    Scott D. Leemis, Jacksonville, for appel-lee.
   NIMMONS, Judge.

In this case involving the application of the Adult Protective Services Act (Sections 415.101-.113, Florida Statutes) (hereinafter sometimes referred to as the “Act”), appellant challenges a final order of the Department of Health and Rehabilitative Services (Department) denying appellant’s request to expunge a confirmed report of neglect. Appellant asserts that: (1) there is no competent, substantial evidence to support a finding of neglect; and (2) the Department departed from the essential requirements of law by placing appellant’s name on the abuse registry for neglect when there is no showing of proximate cause between appellant’s failure to check a disabled adult’s dilantin blood level and the potential to harm the disabled adult patient. On both of these issues, we affirm.

C.C., a mentally retarded person with a history of seizure disorder, has been a resident, since 1983, of an adult congregate living facility. Since 1983, the facility has been owned by B.B.A. and his wife. The latter is. the administrator. C.C. was hospitalized in March 1986 for thrombophlebitis of the leg and an underlying diagnosis of seizure disorder. While hospitalized, C.C. suffered additional seizures. Physician B.B.A. treated C.C. and prescribed several medications to control C.C.’s seizures, including dilantin. After C.C. was discharged from the hospital on April 2, 1986, B.B.A. did not check C.C.’s dilantin blood level until September 7, 1987, when he was re-hospitalized for nausea, vomiting, gastritis, and dehydration. Several days later, C.C. was released from the hospital but was later readmitted in a comatose state on September 12, 1987.

A Department investigator, after reviewing C.C.’s medical files and interviewing medical personnel, reported that B.B.A.’s failure to check C.C.’s dilantin blood levels for the period from March 27, 1986 to September 7, 1987, constituted a confirmed report of neglect. The Department approved the investigator’s referral report and placed B.B.A. on its central abuse registry under Section 415.103(3)(c), Florida Statutes.

B.B.A. challenged the Department’s determination of neglect and a hearing was held to determine whether the Department’s classification of caregiver B.B.A.’s treatment of a disabled adult, C.C., as a confirmed report of neglect should be amended or expunged. Dr. Carlos Leon-Barth, a neurologist, opined that blood tests should be performed at least once a year for the purpose of checking a seizure patient’s dilantin level. He further stated that this was particularly important when dealing with mentally retarded patients like C.C., who may not take their medication regularly and may suffer seizures as a result.

The hearing officer found that C.C. was a “disabled adult” within the meaning of Section 415.102(8), which provides:

(8) “Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations which restrict his ability to perform the normal activities of daily living.

The hearing officer also found that B.B.A. was a “caregiver” as that term is defined in Section 415.102(4):

(4) “Caregiver” means a person or persons responsible for the care of an aged person or disabled adult. “Caregiver” includes, but is not limited to, relatives, adult children, parents, neighbors, day care personnel, adult foster home sponsors,- personnel of public and private institutions and facilities, nursing homes, adult congregate living facilities, and state institutions who have voluntarily assumed the care of an aged person or disabled adult or have been entrusted with the care of an aged person or disabled adult on a temporary or permanent basis.

The hearing officer concluded that B.B.A.’s failure to check C.C.’s dilantin blood level during the period from March 27, 1986 to September 7, 1987, constituted a confirmed report of neglect. He recommended that the Department deny B.B.A.’s request to expunge the confirmed report of neglect. The recommended order was fully adopted in a final order by the Department, which B.B.A. now challenges on appeal.

The Act requires that the Department, among other things, investigate and classify reports of abuse to disabled adults. The procedures for conducting an investigation of a report of abuse are provided for in Section 415.103. The appellant stipulated that the Department followed the required procedures in this case.

Upon completion of an investigation, the Department is required to classify the abuse report as “confirmed,” “indicated,” or “unfounded.” Under Section 415.102(5), a “confirmed report” is one where the “investigation determines that abuse, neglect, or exploitation has occurred and the perpetrator is identified.”

B.B.A. first challenges the Department’s final order on the grounds that there is no competent, substantial evidence that his treatment of C.C. constituted neglect. The term “neglect” is defined in Section 415.102(13) as follows:

(13) “Neglect” means the failure or omission on the part of the caregiver or aged person or disabled adult to provide the care and services necessary to maintain the physical and mental health of an aged person or disabled adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, that a prudent person would deem essential for the well-being of an aged person or disabled adult.

The neurologist’s unrebutted testimony is that a prudent level of care for a mentally retarded, known seizure disorder patient like C.C., is a minimum yearly checkup for dilantin blood levels. Further, B.B.A. also admitted that while under his care, he did not check C.C.’s dilantin blood level from March 27, 1986 to September 7, 1987. Accordingly, we find competent, substantial evidence to support the Department’s final order finding that caregiver B.B.A. was guilty of “neglect” within the meaning of the Act.

Next, we find B.B.A.’s second contention, that the Department departed from the essential requirements of law because it did not prove a proximate cause relationship between B.B.A.’s care and C.C.’s subsequent seizures, is without merit.

At the hearing, the unrebutted testimony of the neurologist was that a physician’s failure to check annually a disabled adult’s dilantin blood level falls below a prudent level of care because if the disabled adult is not taking his medication properly, seizures may result. The fact that there is no evidence that C.C.’s blood level was subthera-peutic from March 27,1986 to September 7, 1987 is, by itself, not determinative since B.B.A. provided substandard care while under a duty to monitor C.C.’s condition at least yearly, in order to prevent seizures or more serious complications from developing.

This is, of course, not a tort action wherein damages and the legal cause therefor must be shown. Nor does the fact that a disabled adult such as C.C. might contribute, by his own acts or omissions, to imperiling his health insulate the caregiver from the latter’s failure to satisfy the above statutory standard.

AFFIRMED.

SMITH, J., concurs.

ZEHMER, J., dissents with written opinion.

ZEHMER, Judge

(Dissenting).

I would reverse the appealed order because the record fails to contain competent, substantial evidence to prove that the disabled adult suffered, or even probably suffered, any ill effects or injury from the appellant’s failure to check the patient’s level of dilantin in his blood during the period March 1986 to September 1987. I do not construe the statute involved in this case as embracing a person’s failure to follow some medical procedure that had no ill effect whatsoever on the adult’s health.

The disabled adult was admitted to the hospital in March 1986 for reasons other than seizures. During his stay, he suffered seizures and was treated accordingly. His dilantin blood level was determined to be slightly low, but it was at a satisfactory level when the adult was released from the hospital to appellant’s care. The disabled adult thereafter remained in the care of appellant’s facility until he was again admitted to the hospital in September 1987. At the time of his admission, his dilantin blood level was determined to be at a satisfactory level. Although the disabled adult suffered seizures in September, there is evidence that this may well have been due to cerebral vascular accident, not low dilan-tin blood level. There is no evidence that the disabled adult’s dilantin blood level ever was at an unsatisfactory level during the entire period from March 1986 until his admission to the hospital on September 7, 1987. There was no proof that the disabled adult failed to take his medication timely and in proper amounts during the entire period. There was no proof that the adult suffered, or even probably suffered, any ill effects from the “act of neglect” charged against appellant. The fact that the adult suffered seizures after his admission to the hospital on September 7, 1987, cannot, therefore, be attributed to appellant's failure to check his dilantin blood level at least once during the specified period. I would not construe the statute governing confirmed reports of “neglect” as embracing conduct that may constitute “neglect” in the abstract without any proof that such neglect caused or probably caused a disabled adult to suffer ill effects.

Moreover, I dispute the legality of holding appellant under a duty to make dilantin blood level tests at least once a year as a measure of prudent care under the statute. There is no statute or department rule imposing such duty. Instead, the department relies solely on the testimony of Dr. Leon-Barth to establish an annual test as the required minimum standard of prudent care within the meaning of the statute. However, Dr. Leon-Barth actually testified, not to a minimum standard of prudent care, but that “I think an optimum standard of care is to do it at least once a year.” (Emphasis added). Dr. Leon-Barth does not state that this optimim standard is a generally accepted practice in the medical profession, and is effectively nothing more than his own personal opinion that may or may not be recognized generally. Since nothing in the statute authorizes a finding of “neglect” for failure to provide optimum care, this testimony does not constitute competent, substantial evidence of a minimum statutory standard, and there is no reference to any statutory provision or rule that would place appellant on notice that he was required to perform tests for dilantin blood level at least annually.

I confess complete mystification at the department’s determination to pursue this neglect charge against appellant in the total absence of any harm caused or even probably caused the disabled adult due to appellant's failure to make at least one test during the eighteen month period. The department’s refusal to expunge this confirmed report of neglect stands the fundamental concept of due process on its head. The department’s refusal is erroneously based on an alleged violation of a standard of prudent care established only by the personal opinion of a physician expressed long after the occurrence in question, and that testimony is legally inadequate because it opines that annual tests are the optimum level of care required of persons in appellant’s position. There is no evidence that appellant was aware of this alleged requirement to test once a year, if it is in fact a requirement, and there is no statute or rule to put him on notice that it is a requirement. In short, appellant was not shown to have had reasonable notice of the standard professional conduct required by the department in this case. To subject appellant to the opprobrium that necessarily flows from the determination of “confirmed neglect” under these circumstances, especially when the disabled adult involved exhibited no symptoms of a sub-therapeutic level of dilantin and suffered no ill effects from the charged act of neglect, is wholly contrary to fundamental notions of fairness and is without legal foundation in the statutes relied on by the department.

The order should be reversed with directions to grant the request that the department’s determination be expunged from the records. 
      
      . B.B.A. does not challenge the hearing officer's findings that (1) he was a "caregiver”; and (2) C.C. was a “disabled adult.”
     
      
      . In fact, the department's expert, Dr. Leon-Barth, testified on cross examination that when the disabled adult was admitted on September 7, 1987, for the seizure episode that triggered the HRS referral, he did not have a sub-therapeutic level of dilantin in his blood system. He also stated that based on reasonable medical certainty, it was probable that the disabled adult had taken the proper medication, dilantin and phenobarbital, for a period before the admission to the hospital, and he concluded that there was “no objective evidence in the records that he was not taking [the medication]."
     