vs. ) CASE NO. 88-1993
Respondent. )
Before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
Laura P. Gaffney, Esquire, of Tallahassee, for Petitioner. Lewis H. Hill, III, Esquire, of Tampa, for Respondent.
Final hearing was held on this case in Tampa on September 28, 1988. The issue is whether the Board of Veterinary Medicine should discipline the Respondent, Fred Jones, D.V.M., for alleged negligence or incompetence in the care and treatment of a client's pet cat on October 14, 1987, and for alleged failure to maintain adequate records in connection with the case.
At the conclusion of the final hearing, the parties asked for and received until November 1, 1988, in which to file proposed recommended orders. Explicit rulings on the parties' proposed findings of fact may be found in the attached Appendix To Recommended Order, Case No. 88-1993.
The Respondent is a licensed veterinarian in the State of Florida, license number VM 0000372. He has practiced veterinary medicine in Tampa since 1953 and has not been the subject of any administrative complaint. In October 1987, the Respondent was practicing at the Dale Mabry Animal Hospital in Tampa.
At approximately 9:30 on the morning of October 14, 1987, a client named Julie Veitia brought her cat, Tuppence, to the hospital. The Respondent's partner, Dr. Chad Hall, was the veterinarian who normally saw Tuppence, but he was not in. In Dr. Hall's absence, the Respondent saw the animal.
Following standard office procedure, the hospital's receptionist ran a computer printout identifying Veitia and Tuppence, as well as a computer- generated summary of past visits. As per standard office procedures, the Respondent would use the blank space at the bottom of the form to make notes on the visit of October 14, 1987. These notes are also maintained and are made available to the treating veterinarian on subsequent visits. On this occasion, for example, the Respondent had available a jacket folder containing all of Dr.
Hall's notes on previous visits. (The Department does not contend that Dr. Hall's notes and the other records of previous visits are inadequate.)
Veitia reported to the Respondent that she had let Tuppence outside in the backyard the previous night as usual. When she got ready to go to bed, she called her cat in, but the animal did not return. The next morning, friends who had been staying the night at Veitia's home and had awaken earlier let the cat in and, noticing that it was crying more than usual, left a note for Veitia to check on her cat. When she did at about 8:30 a.m., Veitia noticed that the cat was limping and that its left rear leg was sensitive to her touch.
On the computer printout on which he wrote his notes of the visit, the Respondent summarized what Veitia had told him as follows: "Hind legs - crying
- OK last nite, came home this a.m. this way. Holds up L.R. (left rear) leg."
The last sentence in the note referred to in the preceding paragraph could have been a note on the Respondent's observation on examination of the animal. Tuppence also was pale and in apparent shock. It could not stand up. At first, the Respondent thought that the cat had been hit by a car. The Respondent attempted to palpate the cat's left rear leg, but it was too sensitive to the touch. Veitia then found a small raised knot on the leg, and the Respondent was able to squeeze a droplet of blood from the leg, and he cut a dime-sized area of hair with scissors to reveal slight swelling and a small puncture wound. The Respondent did not use electric clippers to clip a larger area around the puncture wound because the animal was fighting him and was in shock. After seeing the puncture wound, the Respondent thought that Tuppence may have been bitten by another cat or a dog or had been shot, but he was not sure. Veitia asked if it could be a snake bite. The Respondent answered that there would be a second puncture if it had been a snake bite, but he made no effort to look for a second puncture.
The Respondent's notes (in addition to the last sentence in the note referred to in paragraph 5, above) indicate only that there was an open small hole in the left rear leg and that the animal had suffered trauma of unknown cause.
The Respondent gave the cat a standard dosage injection of penicillin for infection and meticortin, a steroid, for stress. His notes and the subsequently computer-generated medical records reflect the injections. They do not specify that the dosages are standard or what the standard dosages were.
But that information was available elsewhere in the hospital and could be cross- referenced if necessary.
The Respondent also applied Merthiolate to the puncture wound. This is not recorded in his notes. The Respondent chose not to initiate any further treatment until the animal came out of shock. Veitia, who had assumed all along that the Respondent would hospitalize Tuppence, asked to be notified when treatment was started. The Respondent asked if Veitia would not be bringing the cat back in. Surprised at this question, Veitia sought and got confirmation that the Respondent wanted her to take Tuppence home with her and bring the cat back when it came out of shock. They then discussed what kinds of symptoms Veitia should look for and when she should plan to bring the cat back.
Since no treatment plan was initiated at the conclusion of the first visit on October 14, 1987, the Respondent did not write one down in his notes. Instead, he wrote only that the owner wanted to take the cat home and bring it back when it came out of shock. When Veitia left with her cat, the Respondent
took the jacket folder to the receptionist and told her not to re-file it yet because he expected the client to be back soon.
Less than two hours later, Veitia saw what she thought was a worsening of Tuppence's condition and, quite upset, carried the animal back to the hospital. She reported this to the Respondent, who noted the client's observations on a second computer-generated printout made for the second visit. The Respondent himself observed that the cat appeared to be calmer but pale and in worse shock. His notes say: "Appears better but still in shock." (Later, probably after the Respondent was contacted by a Department investigator on December 1, 1987, the Respondent added the word "bad" to this sentence in his notes.) The Respondent also took the cat's temperature, which was normal, and recorded the temperature in his notes. On observation and physical examination, the Respondent observed that the animal's eyes were dilated (not noted in the record), that the pupils did not respond to light (noted) and that the cat now was open-mouth breathing (also noted). The Respondent again palpated the injured leg. This time a second droplet of blood formed. He again clipped the area with scissors and found a second puncture wound about one and a quarter inches away from the first. He again treated the puncture with Merthiolate (again not recorded in his notes). This time he diagnosed snake bite. (The evidence was not clear if this diagnosis was accurate, but there was no evidence that the diagnosis, if wrong, was negligent or incompetent, and the Department does not allege that it was.) The Respondent's notes say only: "Found second bite wound. Apparent snake bite."
By this point, Veitia had become even more upset. The Respondent discussed the possibility of using antivenom, including the negative side effects, and recommended against its use in this case. (This discussion is not recorded in the Respondent's notes.) While other veterinarians might disagree, this recommendation was not negligent or incompetent. The use of antivenom could worsen the shock the cat was in, even itself causing the death of the animal. In addition, the drug is not officially approved for cats and, even for dogs, is significantly less effective when administered more than an hour after the bite.
When the Respondent told Veitia his judgment, from the one and a quarter inch space between the puncture wounds, that the snake was large and that Tuppence probably would not survive, Veitia became even more upset. Veitia asked if a transfusion would save her cat's life. The Respondent answered that he did not think he could do a transfusion. The Respondent again told Veitia that there was little he could do for the cat until it came out of shock. He again told her to go home with the cat and bring it back in the afternoon when the cat no longer was in shock. Veitia then left the premises, taking her cat with her. The Respondent did not note the discussion about a transfusion or any treatment plan but again noted: "Owner wants to take home. Ret[urn] p.m." (Later, again probably after December 1, 1987, the Respondent added the word "sure" to the last notation.)
Before Veitia even got home, Tuppence's condition seriously deteriorated, and she returned to the hospital. By the time she got there, Tuppence had collapsed, and Veitia was extremely upset and loud. Veitia was allowed to go directly to an examining room to wait for the Respondent. When the Respondent came to the door and saw the cat's condition--collapsed, pale and eyes dilated--he stated: "The cat's dying now." Veitia screamed that the cat had stopped breathing and demanded that the Respondent do something. The Respondent thought that Veitia was acting hysterically and refused to do anything until she calmed down. She soon did, and he had her bring the cat to
another room where he administered an injection of epinephrine. They then went to another room where he had her help him administer oxygen. When the Respondent returned about five minutes later, Veitia asked him to check the cat's heart. The Respondent told her that the heart had stopped and that Tuppence had died. Veitia screamed and cried for several minutes, causing the Respondent to become concerned for her well-being.
After the Respondent was contacted by the Department investigator, he prepared a detailed report of the case, signed it, and submitted it to the Department on December 7, 1987. Ordinarily, when a case is extraordinary (for example, when an animal dies), as in this case, the Respondent would go back to his notes and prepare such a report within a day or two after the case is concluded. But in this case, the Respondent was out of the office for most of November 1987, and he did not get around to preparing the report in the usual time-frame. If considered part of the medical record on the case, the detailed report submitted on December 7, 1987, would be adequate documentation of the case. (The Department does not contend that it is not.) However, the facts are not accurate. Even more so than his notes, the report attempts to blame Veitia for taking her cat home against the Respondent's recommendation.
The evidence proved that the Respondent was negligent or incompetent in failing to find the second puncture wound on the first visit. A veterinarian ordinarily will use electric clippers to clip the area of a wound. Whether electric clippers or hand scissors are used, it is mandatory, as the Respondent told Veitia, to look for a second puncture wound to determine whether the puncture signifies a snake bite.
There are standard, accepted protocols for treatment of shock and snake bites in cats (other than the question whether antivenom should be administered to a cat.) These protocols were not followed in the case of Tupprence. Standard shock treatment should have been initiated, or at least recommended, on the first and second visits. On the second visit, when the Respondent diagnosed snake bite, he should have initiated, or at least recommended, standard snake bite treatment. His advice that the owner take the cat home and come back when it was out of shock was negligent and incompetent.
In the Petitioner's Proposed Recommended Order, the Department proposed that the appropriate penalty to be imposed in this case is one year of probation and a $1,000 administrative fine.
CONCLUSIONS OF LAW
Section 474.214(1)(o), Florida Statutes (1987), authorizes the Board of Veterinary Medicine to discipline a licensee who is guilty of: "Fraud, deceit, negligence, incompetency, or misconduct, in the practice of veterinary medicine." As reflected in the Findings Of Fact, the evidence proved that the Respondent violated that statute. Specifically, the evidence proved that the Respondent was negligent and incompetent in not taking proper steps to diagnose the cause of the puncture wound on the first visit and in not following the standard, accepted protocols for treatment of a cat for shock and for snake bite.
Section 474.214(1)(f), Florida Statutes (1987), authorizes the Board to discipline a licensee who is guilty of: "Violating a statute or administrative rule regulating practice under this chapter or a lawful disciplinary order of the board or the department."
F.A.C. Rule 2IX-18.002 requires the preparation and maintenance of a medical record on each veterinary case containing all clinical information pertaining to the case sufficient to justify the diagnosis and warrant treatment, including (among other things not pertinent in this case): patient identification; complaint; present illness; vaccination record; history; physical examination findings; provisional diagnosis; consultation (if any) ; treatment--medical or surgical; and drugs prescribed or dispensed. The rule explicitly contemplates that there may be several files in different locations containing the required information so long as sufficient cross references are maintained for prompt retrieval when required.
In this case, the Respondent wrote a full report on the case that would be adequate under Rule 2IX-18.002 (although, because it was inaccurate, if not also untruthful, it violated other statutory and rule provisions not charged in the administrative complaint in this case) if considered to be part of the medical record for purposes of the rule. But the report was not made until December 7, 1987, after a Department investigator contacted the Respondent about the case. As a matter of law, the report cannot be considered part of the medical record for purposes of the rule.
In assessing whether the computer-generated record and the Respondent's contemporaneous notes on the case meet the requirements of Rule
21X-18.002, it must be taken into account that the Respondent negligently failed to take proper steps to determine whether the cat had been bitten by a snake and failed to initiate proper treatment for shock or for snake bite. The Respondent cannot be disciplined under Rule 21X-18.002 for not recording the treatment plan for a condition (snake bite) which he negligently did not diagnose (on the first visit), for not justifying a treatment (for shock) which he negligently did not do, or for not justifying why he did not treat something either when he negligently did not diagnose it or when there is no justification for not providing or recommending the treatment.
Overall, the Respondent's notes are incomplete and very sketchy. Even so, the rule does not require a level of detail other than to require that the record provide "sufficient information to justify the diagnosis and warrant treatment." In most of the pertinent categories of information required by the rule, the medical record provides sufficient, if minimal, detail under the rule's standard. The description of the treatment given is accurate although, as alluded to in the preceding paragraph, due to the Respondent's negligence the complete appropriate treatment was not given on either of the first two visits, and the Respondent attempted to justify his failure to provide or recommend treatment by claiming that the owner insisted on taking her cat home until it came out of shock. But there was no record at all of the Respondent's consultations with the owner. Nor is there any record of the clipping with scissors or treatment with Merthiolate on the first and second visits. These were violations of the rule.
Section 474.214(2), Florida Statutes (1987), provides for several possible penalties for violations of parts of subsection (1). The pertinent penalties include: revocation or suspension; imposition of an administrative fine not to exceed $1,000 for each count or separate offense; a reprimand; probation; and restriction of the authorized scope of practice. The penalties may be imposed in combination.
According to F.A.C. Rule 21x-30.001(2)(p), the range of penalties for a violation of Section 474.214(1)(o) goes from suspension, followed by one year of probation, and a $1,000 fine up to revocation.
According to F.A.C. Rule 21X-30.001(2)(f), the range of penalties for a violation of Rule 21X-18.002 also goes from suspension, followed by one year of probation, and a $1,000 fine up to revocation.
However, section (3) of Rule 21X-30.001 provides for aggravating and mitigating factors, including (among others not as pertinent): the severity of the offense; the danger to the public; the number of repetitions of offenses; the number of times the licensee has been previously disciplined; the length of time the licensee has practiced; the actual damage caused by the violation; the deterrent effect of the penalty; the effect of the penalty on the licensee's livelihood; the actual knowledge or negligence of the licensee pertaining to the violation; the penalties imposed for related offenses under subsections (1) and (2); and the pecuniary benefit or self-gain to the licensee.
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Board of Veterinary Medicine enter a final order finding the Respondent guilty of violating both Section 474.214(1)(o), Florida Statutes (1987), and F.A.C. Rule 21x-18.002, placing him on probation for six months and imposing a $1,000 administrative fine.
RECOMMENDED this 5th day of December 1988, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 5th day of December 1988.
APPENDIX TO RECOMMENDED ORDER CASE NO. 88-1993
To comply with the requirements of Section 120.59(2), Florida Statutes (1987), the following explicit rulings are made on the parties' proposed findings of fact:
(For purposes of these rulings, the Respondent's unnumbered proposed findings of fact are assigned consecutive numbers for each paragraph.)
1-2. Accepted and incorporated to the extent necessary and not subordinate.
6-7. Subordinate in part to facts found and in part to facts contrary to those found. Any apparent conflict in the various opinions was easily resolved once the difficult factual conflicts between the testimony of the Respondent and Veitia on crucial points was resolved in favor of Veitia's version of the facts.
8. Rejected as being conclusion of law.
9-10. Accepted and incorporated to the extent necessary and not subordinate.
Laura P. Gaffney, Esquire Department of Professional Regulation
Lewis H. Hill, III, Esquire Hill, Hill and Dickenson, P.A. Post Office Box 21428
