vs. ) CASE NO. 80-502
THOMAS J. LANE, D.V.M., )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 10 June 1980 at Ocala, Florida.
For Respondent: C. John Coniglio, Esquire
By Administrative Complaint filed 4 March 1980, the Department of Professional Regulation, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Thomas J. Lane, D,V.M., Respondent. As grounds therefor it is alleged that in the treatment, boarding, and billing for services performed on a dog owned by Thomas and Julia Pilcher, Respondent's conduct reflected unfavorably on the profession of veterinary medicine in violation of section 474.13, Florida Statutes (1977); and fraud or deceit, or negligence, incompetency, or misconduct in the practice of veterinary medicine in violation of Section 474.214(1)(q), Florida Statutes (1979).
At the commencement of the hearing the parties presented a prehearing stipulation which was accepted as Exhibit l. Thereafter Petitioner called Thomas and Julia Pilcher, Respondent testified in his own behalf, and a total of six exhibits were admitted into evidence.
Proposed findings submitted by the parties not included with the findings below were not supported by the evidence or were deemed immaterial to the results reached.
Thomas J. Lane, D.V.M., Respondent, at all times material to this complaint, was a veterinarian licensed by the State of Florida, license number VM0000823.
Respondent practiced veterinary medicine at the Belleview Veterinary Hospital, Belleview, Florida.
During the week preceding June 25, 1978 Thomas and Julia Pilcher had been on vacation and their neighbor was caring for their Doberman Pinscher, Thunder. Upon their return Sunday, June 25, the dog's legs were swollen and he could not walk. Their regular veterinarian was away on vacation and in the early evening Respondent was telephoned to ask if he would open his clinic to examine Thunder. Pilcher gave as reference a regular customer of Respondent and Respondent proceeded to his clinic. When he arrived around 8:45 p.m. Pilcher carried the dog into the examining room.
Upon examination by Respondent, Thunder was found anemic, dehydrated, semi-comatose and with a temperature of 104 degrees Fahrenheit. Blood test showed heartworms although Thunder had been on anti-heartworm medication. Exhibit 4, in the description of examination of Thunder on June 25, 1978 lists "Prognosis--Poor".
At this point the testimony of Pilcher and Respondent diverge upon what was said with respect to the treatment of Thunder. Pilcher's testimony is that he told Respondent he didn't want to pay more than $100 for the treatment of Thunder and that if the costs would exceed that amount, he didn't want the dog treated. Respondent recalls Pilcher had no money when he came to the clinic with Thunder, that he may have quoted Pilcher a price of $100 for treating heartworms, and that he advised Pilcher the dog was very sick and might die.
That evening while Pilcher was present, Respondent performed the following services for Thunder: Four intravenous fluids, blood sample, emergency office call, administered one drug by injection and gave Thunder antibiotics intravenously. Charges for these services were $20, $4, $10, $5 and
$20, respectively, for a total of $59.
Pilcher left the dog with Respondent for treatment, assuming that Respondent was going to start heartworm treatment immediately. Heartworm treatment is contra-indicated for animals with high temperature and Respondent did not intend to, nor did he, commence heartworm treatment on Thunder.
On June 26, Julia Pilcher called the clinic to inquire about Thunder and spoke to Respondent's wife. Mrs. Pilcher testified she asked how Thunder was doing on the heartworm treatment and was told he was doing fine. Mrs. Pilcher understood heartworm treatment to be dangerous for older dogs, hence her concern about the treatment. Mrs. Lane did not testify regarding this conversation.
On Friday, June 30, Respondent's office called Pilcher to advise him Thunder could be picked up. Pilcher had planned to drive to Georgia over July 4 holidays and inquired about the cost of boarding Thunder until after July 4. He was advised the clinic charged $5 per day board. He requested the dog be boarded until after 4 July.
On July 5, 1978 Pilcher went to the clinic to pick up Thunder and was presented a bill for $241 instead of the $125 he was expecting. He also learned
the dog had not been treated for heartworms. Pilcher told Respondent the bill was outrageous and he left the dog at the clinic.
By certified letter dated July 7, 1978 Respondent advised Pilcher that, pursuant to Florida Statutes, he would dispose of Thunder at the end of ten days unless the dog was picked up; and that this would not relieve Pilcher from his legal obligation to pay for services performed, including board for the additional ten days period, euthanasia and burial.
Subsequent telephone conversations between Respondent and Pilcher led to a settlement agreement whereby Respondent agreed to subtract one-half of the bill over one hundred dollars from the amount due. The total bill for services on 11 July was $262. Pursuant to this agreement, Mrs. Pilcher picked up the dog on 11 July and paid Respondent $182.50, which was $100 + 1/2 ($262-$1OO) + $1.50 (for certified letter).
Prior to paying this sum, Mrs. Pilcher had contacted Petitioner to complain about the incident and was told to get receipts for payments made.
Subsequent to Pilcher getting Thunder back, Respondent learned from other customers that Pilcher was proclaiming to numerous people that Respondent had not done right by him in this incident. By letter dated July 27, 1978 (Exhibit 5) Charles Rowe, an attorney representing Respondent, advised Pilcher that it was understood Pilcher had been making slanderous remarks about Lane and that if he did not immediately cease and desist he could expect to have suit filed against him for defamation of character. Following receipt of Exhibit 5, Pilcher ceased "bad-mouthing" Respondent.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
It is noted that Section 474.214(1)(q), Florida Statutes (1979), became effective 1 July 1979 and the acts of Respondent complained of occurred in July 1978. So much of Section 474.214(1)(q) that is not included in Section 474.31(4), Florida Statutes (1977), is not applicable in these proceedings. Acts not subject to disciplinary action when committed in 1978 cannot be made subject to disciplinary action by a statute which became effective 1 July 1979. That would constitute an ex post facto law which is precluded by Article I, Section 10, Florida Constitution.
Section 474.31, Florida Statutes (1977), authorizes the board to take disciplinary action against the license of a licensee found guilty of:
(4) Fraud, deception, misrepresentation, dishonest or illegal practices in or connected with the practice of veterinary medicine in any of its branches;
(13) Conduct reflecting unfavorably on the profession of veterinary medicine.
Here there was an apparent misunderstanding between Pilcher and Respondent regarding the treatment of Thunder and the cost of such treatment. Pilcher was sincere in his belief that by telling Respondent he didn't want to pay more than $100 for treatment for Thunder he had established the maximum fee for services needed to restore Thunder to good health including treatment for
heartworms. Respondent, on the other hand, was obviously concerned with the dehydrated, anemic, high temperature and semi-comatose dog on the verge of death for whom he provided services charged at nearly $60 the evening the animal was brought to the clinic. Under these circumstances it is highly unlikely Respondent agreed to cure Thunder of all afflictions and keep him in the hospital for the time necessary to do so for $100. The controversy obviously stemmed from a misunderstanding and degenerated thereafter.
No evidence was presented, nor was any inference made, that Respondent overcharged Pilcher for the services performed or that he performed any unnecessary services.
The burden is upon Petitioner to prove, by a preponderance of the evidence, the allegations made against Respondent. Gans v. Florida Department of Professional and Occupational Regulation, Case No. 79-186 (Fla. 3rd DCA April 20, 1980); Florida Department of Health and Rehabilitative Services v. Career Service System, 289 So.2d 412 (Fla. 4th DCA 1974). In this 1974 case, the Court stated, at p. 415:
As a general rule the comparative degree
of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding - that is, a preponderance of the evidence. It is not satisfied by proof creating an equipoise,
but it does not require proof beyond a reasonable doubt.
Fraud, deception, dishonest dealing, etc. implies criminal conduct or that which borders on criminal conduct. Intent to defraud is an element of such a charge and no evidence was here presented from which intent can be found.
To be guilty of conduct reflecting unfavorably upon the veterinary profession the conduct complained of must be wrongful. Disciplinary actions may not be taken against a licensee for the commission of acts which he has a legal right to commit. It is conceivable that some people may view with disfavor certain legitimate conduct by a veterinarian and thus look unfavorably upon the profession as a result of this conduct. This is not conduct reflecting unfavorably upon the veterinary profession for which disciplinary action may be taken.
After observing the demeanor of the witnesses, considering the motives, if any, prompting their testimony and considering the conflicting testimony in the light of the undisputed factual situation in which these witnesses participated, I find Respondent not guilty of the charges alleged. It is therefore
RECOMMENDED that all charges against Respondent be dismissed and the case closed.
K. N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 11th day of July, 1980.
Bert J. Harris, III, Esquire Post Office Box 10369 Tallahassee, Florida 32302
C. John Coniglio, Esquire Post Office Box 26 Wildwood, Florida 32785
