STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF VETERINARY ) MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2541

)

KERRY CHATHAM, D.V.M. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its assigned Hearing Officer, Michael Pearce Dodson, held a public hearing in this case on March 13, 1980, in Lakeland, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Bert J. Harris, III, Esquire

BOYD, HARRIS, AND SMITH, P.A.

210 Barnett Bank Building Post Office Box 10369 Tallahassee, Florida 32302

For Respondent: William F. Casler, Sr., Esquire

6795 Gulf Boulevard

St. Petersburg Beach, Florida 33706

These proceedings September 27, 1979, when the Petitioner, Department of Professional Regulation (Department), served an administrative complaint on Respondent, Kerry Chatham, D.V.M. (Dr. Chatham). On December 27, 1979, the matter was forwarded to the Division of Administrative Hearings for the assignment of a hearing officer to conduct the final hearing.

That hearing was noticed for and held on March 13, 1980. In the course of the hearing the parties stipulated to the truth of many of the allegations contained in the Second Amended Complaint. Insofar as those stipulated facts are relevant to this proceeding, they are incorporated below in the Findings of Fact. It is further noted that by his answers to a Request For Admission Dr.

Chatham admits having received the "probable cause" hearing before the Board of Veterinary Medicine as required by Section 120.60(6), Florida Statutes (1979).

The issue presented for determination here is whether or not in the course of treating Mrs. Martha Truitt's Chihuahua, Dixie, Dr. Chatham engaged in unprofessional or unethical conduct or practices below the standards of the veterinary profession and whether or not he properly delegated any of his professional responsibility to Mrs. Truitt. Paragraphs 16, 17, and 18 of the

Second Amended Administrative Complaint were withdrawn by the Petitioner during the hearing.

Careful consideration has been given to each of the Proposed Findings of Facts submitted by the parties. To the extent that they are not contained in this Order, they have been rejected as being either not, supported by competent substantial evidence or as irrelevant and immaterial to the issues for determination here.

The Department presented as its witnesses Mrs. Martha Truitt, Mr. H. L. Truitt, Dr. Victor Chaille, and Dr. James D. Carrier. It offered into evidence Exhibit 1 which was so received. Dr. Chatham presented the following witnesses: himself, Dr. Wade Gardner, Dr. Michael Thomas, Dr. Warren Parker, Dr. Dorsey Hightower, Dr. Donald Andrews, and Dr. William Jackson. Respondent offered into evidence, Exhibits A through G which were so received.

FINDINGS OF FACT

1. Mrs. Martha Truitt owned a five pound Chihuahua female named Hale's Dixie Dynamite which she purchased for $624.00 in 1977. At that time Dixie was one year old. She was later bred in August, 1978. Mrs. Truitt has been a Chihuahua breeder for seven to eight years. She has seen approximately fifteen to twenty litters of dogs delivered and considers herself an expert breeder.

   
   

2. At the hearing, Mrs. Truitt, as a breeder, displayed some ill feeling toward doctors of veterinary medicine (vets). It was also apparent from the testimony of the expert witnesses, that the ill feelings were somewhat reciprocated by the vets. There is apparent professional jealousy over who, the breeder or the vet, knows the most about the proper care of dogs.

   
   

3. On October 2, 1978, Mrs. Truitt took Dixie to Dr. Chatham for an ear mite examination. At the conclusion of the examination, Mrs. Truitt asked Dr. Chatham if he could be available at the end of the month because Dixie was pregnant and was expected to deliver then. Dr. Chatham said he would be available if necessary. There was no firm understanding reached between the parties on exactly what "being available" meant to either person. Mrs. Truitt did not hire Dr. Chatham as an obstetrician for Dixie and he was not requested to give her any prenatal care. There was no further contact between parties until October 24, 1978. Dixie received no prenatal care from any vet. Mrs. Truitt relied on her experience as a breeder to give Dixie the care she thought appropriate.

   
   

4. Dr. Chatham has practiced veterinary medicine in Auburndale, Florida, since 1977. In his practice he has performed approximately 40 Caesarian sections in dogs and has seen several hundred dystocia (abnormal delivery) cases.

   
   

5. In the afternoon of October 24, 1978, Dixie went into mild labor. Mrs. Truitt called Dr. Chatham in the late afternoon or early evening to tell him of Dixie's progress. Again at midnight or 1:00 A.M., on October 25, Mrs. Truitt called Dr. Chatham. She had observed Dixie begin strong contractions and the aminon had broken discharging its "water." She explained to Dr. Chatham that Dixie was now in hard labor and asked for advice. He said to watch the dog and call him back in one hour if any problems developed.

   
   

6. Around 3:00 A.M., Mrs. Truitt again called Dr. Chatham. She was advised to examine Dixie to determine if the first puppy had presented itself in

   the birth canal. During this conversation Mrs. Truitt requested Dr. Chatham to immediately examine Dixie. He did not believe that was necessary as he knew from past experience that a dog could safely remain in labor for more than twelve (12) hours. He did say that if the first puppy had not been born by 7:30 A.M., in the morning to bring Dixie to his office and he would examine her to determine if a Caesarian section would be necessary.

   
   

7. At 7:30 A.M., Mrs. Truitt arrived at Dr. Chatham's Office with Dixie. He was not there upon her arrival. She contacted him through his answering service and by 9:30 A.M., he had arrived and performed the Caesarian section on Dixie and delivered three (3) live puppies. By noon of that day Mrs. Truitt took Dixie home. Unfortunately the little dog died on the next day, October 26, 1978.

   
   

8. When a Caesarian section should be performed on a laboring dog depends upon a variety of factors. If all other factors are equal, a small dog does not have the capability to labor safely as long as a large dog. If the dog has a discolored vaginal discharge then an immediate Caesarian is indicated.

   Caesarian sections are a moderately dangerous operation because the mother dog is already under stress from the labor and from giving life support to her puppies. For that reason, it is not advisable without considerable necessity to add the additional trauma of a Caesarian to her already burdened state.

   Additionally, vets are reluctant to perform a Caesarian section at night if, like Dr. Chatham, they do not have staff available then to assist them in the operation.

   
   

9. Because of the foregoing factors it is good veterinary practice to allow a mother dog to labor at least twelve (12) hours before considering a Caesarian section. Only 25 to 30 percent of dystocia cases eventually do require a Caesarian. The balance of the cases work themselves out without any necessity of surgery.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1979).

    
    

11. This case was bought by the Department of Professional Regulation through the Second Amended Administrative Complaint which alleged violations of Section 474.31(4), (11), (12), and (13), Florida Statutes (1977) and Section 2IX-1.10, Florida Administrative Code. A violation of these provisions may result in the suspension or revocation of Dr. Chatham's license to practice veterinary medicine or could result in other appropriate discipline.

    
    

12. To sustain the allegations of the complaint, the Department must at a minimum, prove the alleged violations by a preponderance of the evidence. See the discussion of the burden of proof in license revocation proceedings in Gans

    v. Florida Department of Professional and Occupational Regulation, So.2d

    , 2 FALR 239J (Fla 3rd D.C.A. April 29, 1980).

    
    

13. The Board urges two reasons for seeking discipline here. It argues that by instructing Mrs. Truitt to vaginal examine Dixie while she was in labor in the very early morning of October 25, 1978, Dr. Chatham had delegated his professional responsibility to Mrs. Truitt, contrary to Section 21X-1.10, Florida Administrative Code. Before a responsibility can be delegated, it must first exist. There was ample proof here, that Dr Chatham had no professional

    responsibility to personally examine Dixie at that time to determine if the Caesarian section was necessary. At, that point in Dixie's labor she was well within the time frame for a normal birth of her litter.

    
    

14. Even if there had been a duty on Dr. Chatham to determine at that time if the first puppy had presented itself in the birth canal, his instruction to Mrs. Truitt to examine Dixie for that determination was not contrary to good veterinary practice. In light of her considerable experience as a dog breeder, his instructions for examining Dixie are no more of a delegation than are instructions to a pet owner on how to give his dog a heart worm pill once a day.

    
    

15. The Board's other theory for seeking discipline is that Dr. Chatham failed to fulfill his agreement made on October 2, 1978, to "be available" to provide treatment to Dixie if she should need it in her delivery expected at the end of October, 1978. This theory fails because there was never any agreement between Mrs. Truitt and Dr. Chatham on what service she was requesting or he would provide. "Being available" could have meant to be available for telephone consultations, as Dr. Chatham clearly was, or it could have meant standing by in his office to perform a Caesarian section on a moment's notice. Dr. Chatham cannot be disciplined for failing to honor an agreement which was never formed.

    
    

16. The other possible violations of Chapter 474, Florida Statutes (1977) alleged in the Second Amended Administrative Complaint have been given consideration. It is concluded that they too have not been proved in this proceeding.

    
    

17. This case presents the unfortunate result of a classic breakdown in communication between a professional and his client. There was no real understanding between Mrs. Truitt and Dr. Chatham, on October 2, 1978, about what services he would later provide. Mrs. Truitt did not specifically ask him about what services he was willing to provide at the conclusion of Dixie's pregnancy and he did not explain them to her. For his part Dr. Chatham did not specifically inquire as to what services she was requesting. There were further misunderstandings in the evening of October 24 and the morning of October 25, 1978. Mrs. Truitt was reasonably concerned about the health of Dixie, when from her experience, Dixie's labor was unusually hard and protracted. From Dr. Chatham's point of view however, there was nothing extraordinary to be concerned about. From having seen many dystocia cases, it was not unusual to him for a dog to labor without complications for twelve (12) hours or more. These facts unfortunately were never communicated to Mrs. Truitt to allay her concern about Dixie's condition. This is not a case of malpractice or even bad practice, it is however, a case of bad communications.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Second Amended Administrative Complaint be dismissed.

DONE and ENTERED this 8th day of September, 1980, in Tallahassee, Florida.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of September, 1980.

COPIES FURNISHED:

Bert J. Harris, III, Esquire BOYD HARRIS & SMITH P.A.

Suite 210, Barnett Bank Building Post Office Box 10369 Tallahassee, Florida 32302

William F. Casler, Sr., Esquire 6795 Gulf Boulevard

St. Petersburg Beach, Florida 33706

Ken Oertel, Esquire General Counsel

Department of Professional Regulation 2009 Apalachee Parkway

Tallahassee, Florida 32301

Docket for Case No: 79-002541

Orders for Case No: 79-002541