Judges: P. MICHAEL RUFF
Agency: Department of Business and Professional Regulation
Latest Update: May 04, 1983
Summary: Dismiss complaint of fraud or culpable negligence on part of veterinarian. There was no proof his worm treatment for dog was incompetent or negligent.
82-2157STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF VETERINARY ) MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2157
)
FREDERICK L. PEACOCK, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on January 11, 1983, in Homestead, Florida.
APPEARANCES
For Petitioner: James H. Gillis, Esquire
Staff Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
For Respondent: Lister Witherspoon, IV, Esquire Attorney at Law
542 Northwest 12th Avenue Miami, Florida 33136
This cause was initiated on an Administrative Complaint filed by the above- styled Petitioner on July 15, 1982, wherein it is alleged that the Respondent, a licensed veterinarian, is guilty of fraud, deceit, negligence, incompetence, or misconduct in the practice of veterinary medicine in alleged violation of subsection 474.214(1)(q), Florida Statutes (1981). Specifically, it is alleged that a Ms. Eva M. Pohner presented her dog, Bruno, to the Respondent to be tested for heart worm microfilaria. The Respondent allegedly performed a blood test which proved to be negative for circulating microfilaria, whereupon he advised Ms. Pohner of the negative results and asked whether she wanted to start on the preventative medication, to which she responded in the affirmative. It is alleged that the Respondent then dispensed one hundred tablets of Diethylcarbamazine. Ms. Pohner allegedly waited until February 10, 1982, to administer a tablet to the dog so that she could watch him during that entire day. Within one hour after administering the tablet, it is alleged that the dog became in distress and, upon being presented at an animal clinic, died later that same day.
At the hearing the Respondent presented the testimony of Dr. Frederick L. Peacock, the Respondent himself, as well as Deborah Earl, the receptionist for
Respondent at the time of the incidents in question. The Petitioner proffered Exhibits 1 and 2, Exhibit 1 being a letter from the complaining witness, who failed to attend the hearing, and Exhibit 2 to be a deposition for which the record was to be held open until February 11, by agreement of the parties. The deposition was never taken, so Petitioner's Exhibit 2 was never actually submitted, and therefore Petitioner's Exhibit 1, the letter, which could only be admitted as corroborative of Exhibit 2 pursuant to Section 120.58, Florida Statutes, could thus not be admitted either. The Respondent presented Exhibits
1 through 6, all of which were admitted into evidence.
The issue in this case concerns whether Dr. Frederick L. Peacock properly administered an EVSCO difil blood test for heart worm microfilaria on a canine by the name of "Bruno" owned by Eva M. Pohner and whether that blood test and recommended treatment were done in a manner constituting negligence in the practice of veterinary medicine for purposes of the above-cited subsection.
Subsequent to the hearing the parties elected to secure a transcript of the proceedings, which was filed February 22, 1983, with the Division of Administrative Hearings. The parties availed themselves of the right to file proposed findings of fact and conclusions of law, all of which were timely filed on or before March 14, 1983.
FINDINGS OF FACT
The Respondent, Frederick L. Peacock, D.V.M., is a licensed veterinarian, having been issued license No. 0000567. The Petitioner is an executive agency of the State of Florida, having authority over the licensure and regulation of the licensure, professional practice and operations of veterinarians within the State of Florida.
The Respondent operates a veterinarian establishment known as The Animal Clinic of South Homestead, 60 North Homestead Boulevard, Homestead, Florida 33030.
On or about February 8, 1982, Eva M. Pohner presented her dog named "Bruno" to the Respondent to be tested for heartworm microfilaria. On that day the Respondent drew approximately one cc of blood from the canine Bruno for the purpose of performing a blood test for heart worm microfilaria. The Respondent used the EVSCO difil test. The blood test was negative for heart worm microfilaria, but Respondent recommended that another test be performed for certainty, and recommended to Ms. Pohner that heart worm preventative treatment be started immediately in order to prevent any new infestation of heart worm larvae or microfilaria. The Respondent dispensed one hundred tablets of 200 mg. each of Diethylcarbamzine to Ms. Pohner for administration to her dog, advising her that she should not leave the dog unattended when giving him the medication. He told her to give the medication immediately in order to avoid an adverse reaction in case heart worm larvae should become implanted in Bruno's circulatory system in the next few days. The reason he recommended that she give the medication to the dog immediately was that an adverse and possibly fatal reaction could occur if the dog contracted heart worm larvae a short time after the negative test results and before the medication was given. In fact, Ms. Pohner waited for several days so that she could ascertain that she would be home all day on the day she gave the dog the medication. She gave the dog the medication on approximately February 10, 1982. The dog immediately became distressed and his condition steadily worsened, with labored breathing, and by two o'clock on the afternoon of that day at a nearby veterinary clinic the dog died.
The test performed by Respondent, and the treatment and medication he recommended, were the latest and best accepted method of dealing with heart worm infestation or the prevention of heart worms in canines. The EVSCO difil test has the smallest margin for error of any of the three commonly used tests. However, it is important that the medication be administered as soon as possible after the negative test results are obtained to ensure that no infestation occur prior to the giving of the medication and after a negative test. In the opinion of recognized experts in the field, the test performed by Respondent was the best accepted of the three tests commonly done by veterinarians and the medication recommended, as well as the method and manner of treatment recommended, was of the highest professional acceptability.
Ms. Pohner was also advised by the Respondent that there was a chance that the test could be a false negative test, and that heart worms might be latently present, and that another test was in order. Ms. Pohner informed the Respondent that she would ask her mother about performing another test, but did not think she would do so because of the expense.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings pursuant to Section 120.57(1), Florida Statutes.
Pursuant to Chapter 474, Florida Statutes (1981), the Board of Veterinary Medicine has jurisdiction of the licensure status, practice, and discipline of licensed veterinarians in the State of Florida.
There is absolutely no evidence in the record of this proceeding to demonstrate that the Respondent was in any way negligent in the method and manner of treatment and in his recommendations to Eva M. Pohner concerning the treatment of heart worm microfilaria in her dog, Bruno. Indeed, the Respondent was established to have used the most effective and least fallacious means of testing and diagnosing with regard to heart worm microfilaria, as well as the most professionally competent manner and method of treating, to prevent such an infestation. There was no showing whatever that the Respondent was negligent in any manner in the performance of professional services provided to and recommendations made to Ms. Pohner.
RECOMMENDATION
Having considered the foregoing facts and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that the Administrative Complaint filed against the licensure status of Dr. Frederick L. Peacock be dismissed with prejudice.
DONE and RECOMMENDED this 4th day of May, 1983, at Tallahassee, Florida.
P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1983.
COPIES FURNISHED:
James H. Gillis, Esquire Staff Attorney
Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Lister Witherspoon, IV, Esquire Attorney at Law
542 Northwest 12th Avenue Miami, Florida 33136
Jane Raker, Executive Director Board of Veterinary Medicine Department of Professional Regulation
130 North Monroe Street Tallahassee, Florida 32301
Fred M. Roche, Secretary Department of Professional
Regulation
130 North Monroe Street Tallahassee, Florida 32301
Docket for Case No: 82-002157
Orders for Case No: 82-002157
| Issue Date |
Document |
Summary |
|
May 04, 1983 |
Recommended Order
|
Dismiss complaint of fraud or culpable negligence on part of veterinarian. There was no proof his worm treatment for dog was incompetent or negligent.
|
