Guardian at center of Florida scandal appeals judge’s ruling that she broke state rules by misusing DNRs

By Monivette Cordeiro

Gerald Manczak, a ward of Rebecca Fierle, said this "do not resuscitate" order was filed without his permission by the professional guardian. (Monivette Cordeiro / Orlando Sentinel)

Former Orlando guardian Rebecca Fierle is appealing a judge’s ruling that she violated state rules by misusing “do not resuscitate” orders on incapacitated clients and improperly billing AdventHealth nearly $4 million for services she provided to their vulnerable patients.

An attorney for Fierle, who resigned as a guardian statewide July 25, filed two petitions Monday asking the state’s Fifth District Court of Appeals to reverse the ruling from Orange County Circuit Judge Janet C. Thorpe and remove the judge from the case.

Fierle’s attorney, Harry Hackney, argues Thorpe overstepped her authority by disciplining his client and wrongly suggesting the Orlando guardian needed permission prior to signing DNRs from the judge or wards’ family members.

“She can consult family and friends to discern what the ward would have done when competent,” Hackney argued. “She is NOT required to get their permission nor the court’s.”

The embattled guardian is under criminal investigation after the death of 75-year-old Steven Stryker, a ward who died at a Tampa hospital after staff were unable to perform life-saving measures due to a “do not resuscitate” order Fierle filed against his wishes and refused to remove.

An investigation by the office of Orange County Comptroller Phil Diamond found Fierle charged AdventHealth, a Central Florida hospital company, about $3.96 million over a decade for services to 682 patients — a financial arrangement not allowed under Florida law without court approval.

In a Sept. 12 order, Thorpe said Fierle violated several state administrative rules, including mandates to avoid conflicts of interest when addressing wards’ needs and a ban on soliciting or accepting incentives from service providers.

“Based upon the Comptroller’s Report, this Court has no confidence in Ms. Fierle’s actions, reliability, or truthfulness as a professional guardian,” Thorpe wrote. “This court finds probable cause to permanently remove Rebecca Fierle from any appointment in Orange County as a professional guardian.”

But Fierle’s attorney Harry Hackney in the appeal petitions argued the judge’s order was filed without a hearing and without giving Fierle a chance to contest the findings.

“The proceedings in question were apparently conducted secretly by Judge Thorpe in chambers after receiving multiple hearsay reports,” the petition said. “Those proceedings still must comply with the Rules adopted by the Florida Supreme Court and not with the whim of one judge.”

The Florida Department of Elder Affairs’ Office of Public and Professional Guardians has “exclusive jurisdiction” over the discipline of guardians, not Thorpe, Hackney said.

“Judge Thorpe had no authority to proceed to make findings of fact regarding violations of law by Rebecca Fierle or to take steps to ‘remove’ Rebecca Fierle as Professional Guardian after she had resigned,” according to the appeal.

Hackney also argued Thorpe “misconstrued” the rules surrounding DNR orders. In her order finding probable cause, the judge said Fierle violated her duty to act in the best interest of her incapacitated clients by placing DNR orders on them without bringing the issue before the court.

“No guardian can ‘place’ or execute a ‘Do Not Resuscitate Order’ because it is a medical order that must be entered by a physician,” Hackney said.

If a patient is incapacitated, the DNR order can be signed by the patient’s health-care surrogate, health-care proxy or court-appointed guardian delegated to make medical decisions, he wrote.

Thorpe in her ruling cited a provision in Florida’s Administrative Code governing the withholding of medical treatment. If a ward’s “past or current wishes” conflict with what a guardian feels is best, the guardian “shall have this ethical dilemma submitted to the court for direction,” the rule says.

But Hackney said the rule is only meant to permit a guardian to seek a judge’s guidance “when the course of action is not clear” — not to require it.

“If the Guardian acted under the statute she would be immune from civil or criminal liability for the DNR decision,” the petition said. “There was no legal basis ... to support Judge Thorpe’s ruling that court approval needed to be sought prior to consenting to a DNR Order executed by a physician for the benefit of the Ward.”

In Stryker’s case, an investigation by the Okaloosa County Clerk of Circuit Court and Comptroller found Fierle refused to remove the DNR order despite Stryker’s desire for life-saving actions and against the wishes of his daughter, his health-care surrogate and a psychiatrist.

When asked about the DNR she filed on Stryker, Fierle told Okaloosa Clerk auditor and investigator Andrew Thurman that it was “an issue of quality of life rather than quantity” and Stryker had agreed to it.

“The ward had never previously expressed a desire to die, and it seems unlikely that, as soon as he was appointed a guardian, he would suddenly be unwilling to tolerate a condition that he had been dealing with for many years,” Thurman wrote in his report.

The Ninth Circuit Judicial Court was unable to comment on the appeal, a spokeswoman said.

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Guardian at center of Florida scandal appeals judge’s ruling that she broke state rules by misusing DNRs