STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3492

)

MICHAEL J. PONTE, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on September 11, 1991, in Fort Lauderdale, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Roberta Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Neil F. Garfield, Esquire

World Executive Building 3500 N. State Road 7

Suite 333

Fort Lauderdale, Florida 33319 STATEMENT OF THE ISSUES

1. Whether Respondent committed the offenses described in the Amended Administrative Complaint?

   
   

2. If so, what disciplinary action should be taken against him?

   
   

   PRELIMINARY STATEMENT

   
   

   On April 18, 1990, the Department of Professional Regulation (Department) issued an Amended Administrative Complaint (Complaint) charging that Respondent, a licensed veterinarian, violated Section 474.214(1)(o), Florida Statutes, "by committing fraud, deceit, negligence, incompetency, or misconduct, in the practice of veterinary medicine," and Section 474.214(1)(f), Florida Statutes, "by not maintaining medical records as established by Rule 21X-18.002, Florida Administrative Code." The alleged facts upon which these charges were based were set forth in paragraphs 2 through 12 of the Complaint, which read as follows:

   1. Respondent is, and has been at all times material hereto, a licensed veterinarian, license number VM 0002825, whose address of record is Aark Animal and Bird Clinic,

      4634-A N. Federal Highway, Lighthouse Pt., Florida 33064.

   2. On or about March 10, 1989, "J.M.B.," presented her three (3) year old cockatiel to the Respondent for treatment. A door had slammed shut on the bird's right leg and the leg had sustained a tarsometarsus fracture (comminuted above the foot), severance of blood vessels and torn skin; the leg was severed except for a little skin.

   3. The Respondent advised amputation of the leg but J.M.B. declined. In his treatment of the bird, the Respondent sutured the laceration but failed to protect the fracture or to immobilize the leg. If there was to have been any chance of survival of the foot and healing of the bones, the foot and leg should have been immobilized.

   4. A simple tape splint or Robert Jones dressing would have been adequate for this light small bird.

   5. The Respondent used vetabond (Nexaband) in surgery, but without the intermedulary pin it could not be relied upon to hold bone or tissue together by itself, especially if the leg hemorrhaged, which it did later. It did not provide an adhesive bond and was

      inappropriate for use in a comminuted fracture because it could have held in bacteria and caused osteomyelitis.

   6. After treatment, J.M.B. took her bird home. On or about the evening of March 10, 1989, the bird's leg began to bleed. After not being able to contact the Respondent,

      J.M.B. took the bird to the Pet Emergency Center where it was treated by David T. Smith, D.V.M., who conferred with Greg J. Harrison, D.V.M. (avian specialist), via telephone.

   7. On or about March 11, 1989, J.M.B. took her bird to Dr. Harrison, who found seven stitches sewn around the bird's leg. The foot was found to be "dead" and Dr. Harrison amputated it.

   8. Dr. Harrison was concerned that the bird's leg had not been immobilized. He found the Respondent's billing of J.M.B. to be "money-generating" and excessive, as the Respondent performed four (4) different physical exams.

   9. The Respondent's bill to J.M.B. for her bird's treatment showed a charge totalling

      $45 for an avian exam and emergency daytime

      treatment. The record only indicates "severed foot/leg, no sensory all four (4) toes." There is no record as to the physical condition of the bird (weight, blood loss, respiration, heart rate, etc). Either an adequate physical exam was not performed or these things were not noted on the medical record.

   10. The Respondent stated in his hospital policy that emergency care was available 24 hours a day and yet he said he was on his way to lunch when J.M.B. came in with her bird, on or about March 10, 1989, and had to stay there to treat the bird, presumably because

       no one else was there to cover in his absence.

       J.M.B. stated that later in the evening, when her bird started bleeding, she waited thirty

       (30) minutes after she called the Respondent's emergency number and received no response before she took her bird to the Pet Emergency Center.

   11. The Respondent appears [to have] charged excessively for the .05cc of Depomedrol, the

.15 cc of Chloromycetin and for the "fluid therapy set up."

Respondent denied the allegations of wrongdoing made in the Complaint and requested a formal hearing on the matter. On June 6, 1991, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer.

At hearing, the Department presented the testimony of four witnesses: Drs.

Gregory Harrison, David Smith and Phyliss Douglas, all Florida-licensed veterinarians, and Janice Betts, the owner of the cockatiel referenced in the Complaint. In addition to the testimony of these four witnesses, the Department offered, and the Hearing Officer received, four exhibits into evidence.

Respondent testified on his own behalf. He also presented the testimony of his wife, Scherice Ponte, who works in his office, as well Debra Alabise, another member of his office staff. In addition to this testimonial evidence, Respondent offered, and the Hearing Officer received, one exhibit into evidence. On October 10, 1991, following the close of the hearing, Respondent submitted, without objection, as late-filed exhibits, the depositions of Drs. Clark Douglas Page and Stephen Crane, both Florida-licensed veterinarians. These depositions were offered in lieu of the deponents' live testimony. On October 14, 1991, the Hearing Officer issued an order receiving these late-filed exhibits into evidence, closing the evidentiary record and advising the parties that their post-hearing submittals had to be filed no later than November 8, 1991.

On October 29, 1991, the Department timely filed its proposed recommended order in the instant case. On November 7, 1991, Respondent filed a motion requesting an extension of time to file his proposed recommended order. A hearing on the motion was held by telephone conference call on November 8, 1991. That same day, the Hearing Officer issued an order disposing of Respondent's motion. The order provided in pertinent part as follows:

Good cause having been shown, Respondent's motion for extension of time is hereby GRANTED. Respondent shall file his proposed recommended order no later than November 18, 1991. Petitioner will have the opportunity to file a supplemental proposed recommended order following the filing of Respondent's proposed recommended order. Any such supplemental proposed recommended order must be filed no later than 30 days after the

filing of Respondent's proposed recommended order.

Respondent timely filed his proposed recommended order on November 18, 1991. No supplemental proposed recommended order has been filed by Petitioner.

The Department's and Respondent's proposed recommended orders both contain proposed findings of fact. These proposed findings of fact set forth in the parties' post-hearing submittals have been carefully considered and are specifically addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made:

1. Respondent is now, and was at all times material hereto, a veterinarian authorized to practice veterinary medicine in the State of Florida under license number VM 0002825. He has practiced veterinary medicine since 1981. 1/

   
   

2. Respondent is a sole practitioner. He owns and operates the Aark Animal and Bird Clinic (Clinic) in Lighthouse Point, Florida. 2/ As the name of the Clinic suggests, Respondent's practice includes, but is not limited to, the care and treatment of pet birds, including cockatiels. 3/

   
   

3. Respondent's regular office hours are 8:00 a.m. to 11:45 a.m. and 3:00

   p.m. to 5:45 p.m. Office visits that occur between 11:45 a.m. and 3:00 p.m. are considered emergencies for billing purposes.

   
   

4. As indicated in the informational materials Respondent furnishes to the pet owners who utilize his services, he offers emergency care and treatment on a 24-hour a day basis. When the office is closed, emergency calls are routed to an answering service, which in turn contacts Respondent by beeper.

   
   

5. On March 10, 1989, at around 12:00 noon, Janice Betts called Respondent's office concerning an injury that her pet cockatiel, Cinnabar, had just suffered. Cinnabar had caught its right leg in a door jamb as the door was closing. The result was a complete fracture of the leg above the toes, as well as tendon, ligament, artery, vein and tissue damage in the area around the fracture site. Indeed, the leg had been almost totally severed. Only some tissue remained.

   
   

6. After being told that Respondent would see Cinnabar, Betts took the bird to Respondent's office. They arrived at around 12:30 p.m. Although injured, Cinnabar was not in deep shock.

   
   

7. Upon their arrival at the office, Betts and Cinnabar were immediately escorted to the examining room, where Respondent examined Cinnabar. Noting the

   extent of the damage that had been done and that the distal portion of Cinnabar's right leg "was hanging on by [just] a thread of skin," Respondent recommended that the leg be amputated. He made this recommendation without having clipped Cinnabar's toenail to determine the extent of blood flow, if any, to the distal portion of the leg. 4/

   
   

8. Betts asked Respondent if there was anything that could be done to save Cinnabar's leg. Respondent indicated that he could do "microsurgery," but that there was no guarantee that it would work. He further advised her of the possible post-operative complications that could arise if "microsurgery" were performed.

   
   

9. Respondent gave Betts a written, itemized estimate of the charges involved in such a procedure. Betts signed the estimate and authorized Respondent to perform the procedure. She then left the office.

   
   

10. Respondent proceeded to stitch the detached portion of Cinnabar's right leg back on using fine vicral sutures. He then applied Nexaband Avian, a bonding agent, 5/ to the epidermal and subepidermal areas around the sutures where there were gaps. 6/ He did not apply any of this substance, however, to the fracture site. 7/

    
    

11. Shortly after the surgery, at around 1:10 p.m., Betts called Respondent's office and asked if she could speak with Respondent about Cinnabar's condition. Betts was told by the person who answered the phone that Respondent was not in the office.

    
    

12. Betts returned to Respondent's office at around 5:00 p.m. that same day. She paid her bill, using a credit card, 8/ and then took Cinnabar home.

    
    

13. Betts' bill totalled $444.50, including $20.00 for an "avian exam,"

    $25.00 for "emergency day-time" treatment, $20.00 for an "office inject- antibiotic," $20.00 for an "office inject- steroid," $9.00 for a "para-fecal exam," $9.00 for a "para-fecal exam (direct)," 9/ $30.00, which represented an "operating room fee," $28.00 for "disposables" used during surgery, $42.00 for "anesthesia- general inhalant," $90.00 for the time spent by Respondent in surgery, $30.00 for the time of his surgical technician, $22.50 for "fluid therapy set up," $18.00 for "fluid therapy S.C. ea," $15.00 for "hospital per date Dr. superv.," $10.00 for "hospital per date: Nurse Care," $30.00 for "incubation/date," and $26.00 for "Chloromycetin palmitate 60ml," which is an antibiotic.

    
    

14. While Respondent did examine Cinnabar, his medical records do not reflect that an adequate examination was performed. They contain no information regarding Cinnabar's general physical condition, which such an examination should have revealed to Respondent. It was essential for Respondent to have had this information before treating Cinnabar.

    
    

15. Cinnabar's visit was considered an emergency visit for billing purposes because it did not occur during Respondent's regular office hours. It is customary for veterinarians to charge an additional fee, as did Respondent, for visits outside regular office hours.

    
    

16. For the medications he administered, as well as for the "fluid therapy set up," Respondent charged Betts considerably more than his cost and he therefore realized a handsome profit on these items. 10/

17. Respondent released Cinnabar to Betts without taking any measures to immobilize Cinnabar's fractured leg. In failing to take such action, he acted in a manner that was inconsistent with what a reasonably prudent veterinarian would have done under like circumstances and therefore engaged in conduct that fell below the minimum standard of acceptable care for veterinarians in the community. The failure to immobilize a fracture of the type Cinnabar sustained, not only diminishes the likelihood that the injury will heal properly and increases the chances that further damage to the areas surrounding the fracture site will occur, it also leaves the bird vulnerable to pain if it tries to stand on the leg.

    
    

18. No justification existed for Respondent not to have immobilized Cinnabar's fractured leg.

    
    

19. There were various devices readily available to Respondent that he could have used for that purpose.

    
    

20. Any concerns that Respondent may have had regarding the efficacy of such devices were unfounded.

    
    

21. Furthermore, Respondent was misguided to the extent that he believed that, if he used such a device, he would not be able to determine, on Cinnabar's follow-up visit, whether the "microsurgery" was successful because the device would interfere with his ability to visually inspect the affected area of Cinnabar's leg. 11/

    
    

22. That evening, at around 7:30 p.m., while at home, Betts noticed that Cinnabar's leg had begun to bleed again.

    
    

23. She called Respondent's answering service. Respondent returned her call approximately 35 minutes later, but Respondent was not home. She had already left to take Cinnabar to see another veterinarian, Dr. David Smith, at the Pet Emergency Center.

    
    

24. Upon the bird's arrival at the Pet Emergency Center, it was seen by Dr. Smith. The bird initially presented as "very stressed and shocky." Smith stopped the bleeding by using manual pressure as well as a clotting powder. He also tried "to put the skin edges back together" with Nexaband Avian. He provided no other treatment.

    
    

25. During the visit, both Dr. Smith and Betts spoke by telephone with Dr. Gregory Harrison, a veterinarian who specializes in the treatment of pet birds. Betts made arrangements to have Dr. Harrison see Cinnabar early the following morning at his office in Lake Worth, Florida.

    
    

26. The following morning, Betts brought Cinnabar to Dr. Harrison's office. The bird's general physical condition had not changed substantially since it had been seen by Dr. Smith the evening before.

    
    

27. Dr. Harrison examined the bird. He determined based on observation, and subsequently confirmed by x-ray, that Cinnabar had indeed suffered a complete fracture of the right leg. Furthermore, it appeared that Cinnabar had a devitalized right foot, inasmuch as it was cold, the toenails were black and there was no fresh blood circulating to the toes. The treatment options that were available were to attempt to reestablish the blood supply by microsurgically rejoining the ends of the damaged blood vessels and then immobilizing the fracture, or to amputate the leg below the fracture site.

    Given the substantial cost of the first option and the likelihood it would be unsuccessful, Dr. Harrison recommended amputation. Betts accepted his recommendation. After receiving Betts' authorization, Dr. Harrison performed the amputation.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Board of Veterinary Medicine (Board) is statutorily empowered to take disciplinary action against a veterinarian licensed to practice veterinary medicine in the State of Florida based upon any of the grounds enumerated in Section 474.214(1), Florida Statutes. Such disciplinary action may include one or more of the following penalties: license revocation; license suspension; imposition of an administrative fine not to exceed $1,000 for each count or separate offense; issuance of a reprimand; and placement of the veterinarian on probation for a period of time and subject to such conditions as the Board may specify. Section 474.214(2), Fla. Stat.

    
    

29. In those cases where license revocation or suspension is sought, the licensee's guilt must be established by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987); Pascale v. Department of Insurance, 525 So.2d 922 (Fla. 3d DCA 1988). "The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established." Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983). Furthermore, the disciplinary action taken may be based only upon the offenses specifically alleged in the administrative complaint. See Kinney v. Department of State, 501 So.2d 129, 133 (Fla. 5th DCA 1987); Hunter v. Department of Professional Regulation, 458 So.2d 842, 844 (Fla. 2d DCA 1984).

    
    

30. In determining whether the licensee has violated Section 474.214, Florida Statutes, as charged in the administrative complaint, one "must bear in mind that it is, in effect, a penal statute . . . This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably proscribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the . . . licensee." Lester v. Department of Professional and Occupational Regulations, 348 So. 2d 923, 925 (Fla. 1st DCA 1977).

    
    

31. The Amended Administrative Complaint issued against Respondent in the instant case alleges that Respondent's actions, in connection with his treatment of Cinnabar on March 10, 1989, constituted negligence and incompetency and, resultingly, a violation Section 474.214(1)(o), Florida Statutes.

    
    

32. Section 474.214(1)(o), Florida Statutes, authorizes the Board to discipline a Florida-licensed veterinarian for "fraud, deceit, negligence, incompetency, or misconduct, in the practice of veterinary medicine."

    
    

33. "Negligence" and "incompetency," as those terms are used in Section 474.214(1)(o), Florida Statutes, connote a "failure to comply with the minimum standard of care or treatment required of a veterinarian under the circumstances." Purvis v. Department of Professional Regulation, 461 So.2d 134,

    136 (Fla. 1st DCA 1984). Accordingly, to support a charge of "negligence" or "incompetency," in violation of Section 474.214(1)(o), Florida Statutes, the Department must present "evidentiary proof of some standard of professional conduct as well as deviation therefrom." Id.

34. The Department has done so in the instant case. It has established by clear and convincing evidence that, in failing to immobilize Cinnabar's fractured right leg as alleged in paragraph 4 of the Amended Administrative Complaint, Respondent acted in a manner that was below the minimum standard of acceptable professional conduct and therefore in violation of Section 474.214(1)(o), Florida Statutes. Accordingly, he should be disciplined for this transgression. 12/

    
    

35. The Amended Administrative Complaint further alleges that Respondent's billing of Betts constituted an additional violation of Section 474.214(1)(o), Florida Statutes. Specifically, it alleges that Respondent unnecessarily charged for "four (4) different examinations" and for "emergency daytime treatment," and excessively charged for medications and "fluid therapy set up." 13/

    
    

36. The evidence does not reveal that any examination for which Betts was charged was unnecessary.

    
    

37. Furthermore, it appears that charging Betts an additional $25.00 for "emergency day time treatment" was consistent with the prevailing practice of veterinarians to charge an additional fee for office visits made outside regular office hours.

    
    

38. With respect to the alleged excessiveness of the medication and "fluid therapy set up" charges, the following remarks made in Wadlington v. Barron, 91 So.2d 448, 451 (La. App. 1956) are instructive:

    
    

    The balance of the account is comprised of charges for medications of various kinds and nature. It is earnestly argued by distinguished counsel for defendant that plaintiff's [the charging physician's] own testimony on cross-examination discloses that the charges for much of these medicines indicates an unjustifiable margin between the cost to plaintiff and the charge to his patient. This fact is obvious, and it would appear that the margin indicates a charge, over cost, of several hundred percent, in most instances and perhaps, a thousand or more percent in others. On the face of such a showing we concede that such charges appear exorbitant and unreasonable to the layman.

    However, while our laws prohibit usury and provide penalties therefor with respect to the lending of monies, we are aware of no statutes which limit or restrict the percentage of profit in instances of this kind. Again we point out that defendant has failed to prove that these charges exceed the established and customary limits as measured

    by the customs of other hospitals and clinics.

    
    

    Similarly, in the instant case, the Department has failed to demonstrate, in charging Betts as much as he did for medications and "fluid therapy set up," Respondent violated any statutory or rule provision or departed from the customary billing practices of similarly situated veterinarians in his

    geographic area. Absent such a showing, the evidence is insufficient to establish that such conduct violated Section 474.214(1)(o), Florida Statutes.

    
    

39. Accordingly, the Amended Administrative Complaint should be dismissed to the extent that it alleges that, in making the charges discussed above, Respondent acted in violation of Section 474.214(1)(o), Florida Statutes.

    
    

40. The Amended Administrative Complaint also suggests that Respondent was guilty of violating Section 474.214(1)(o), Florida Statutes, because, contrary to the assertion made in his "hospital policy," he did not provide 24-hour a day emergency care, as evidenced by his dealings with Betts. The allegation is without merit and therefore should be dismissed. While the evidence establishes that Respondent, a sole practitioner, was not at his office at all times on March 10, 1989, it does not demonstrate that he was unavailable to respond within a reasonable amount of time to after hours calls received by his answering service.

    
    

41. The Amended Administrative Complaint contains the additional allegation that Respondent violated Section 474.214(1)(f), Florida Statutes, by failing to record on Cinnabar's chart information sufficient to meet the requirements of Rule 21X-18.002, Florida Administrative Code.

    
    

42. Section 474.214(1)(f), Florida Statutes, authorizes the Board to discipline a Florida-licensed veterinarian for "[v]iolating a statute or administrative rule regulating practice under this chapter or a lawful disciplinary order of the [B]oard or the [D]epartment."

    
    

43. Rule 21X-18.002, Florida Administrative Code, is among the "administrative rule[s] regulating practice under . . . [C]hapter" 474, Florida Statutes. It requires licensees to maintain medical records on their patients and it prescribes the contents of those records. Subsection (3) of the rule specifies that a patient's medical record must contain information regarding, among other things, any physical examination performed by the veterinarian.

    
    

44. The evidence clearly and convincingly establishes that Respondent's records relating to Cinnabar's March 10, 1989, visit lack such information. Consequently, Respondent should be found guilty of, and disciplined for, engaging in conduct contrary to Section 474.214(1)(f), Florida Statutes.

    
    

45. In determining what disciplinary action should be taken against Respondent for his "negligence" and "incompetency" in treating Cinnabar and his failure to maintain adequate medical records, it is necessary to consult Chapter 21X-30, Florida Administrative Code, which contains the Board's disciplinary guidelines. Cf. Williams v. Department of Transportation, 531 So.2d 994, 996 (Fla. 1st DCA 1988)(agency is required to comply with its disciplinary guidelines in taking disciplinary action against its employees).

    
    

46. Rule 21X-30.001, Florida Administrative Code, provides in pertinent part as follows:

    
    

    * * *

    1. When the Board finds an applicant or licensee whom it regulates under Chapter 474, Florida Statutes, has committed any of the acts set forth in Section 474.214(1), Florida Statutes, it shall issue a Final Order imposing appropriate penalties within the

       ranges recommended in the following disciplinary guidelines:

       * * *

       (f) Violating . . . the provisions of Chapters 474 or 455, Florida Statutes, or any rules promulgated thereto. The usual action of the Board shall be to impose a penalty ranging from suspension followed by one (1) year probation and a one thousand dollar ($1,000.00) administrative fine up to revocation.

       * * *

       (p) Fraud or deceit, or negligence, incompetency, or misconduct in the practice of veterinary medicine. The usual action of the Board shall be to impose a penalty of a suspension followed by one year probation and a one thousand dollar ($1,000.00) administrative fine to revocation.

       * * *

    2. Based upon consideration of aggravating or mitigating factors present in an individual case, the Board may deviate from the penalties recommended in paragraphs (1) and (2) above. The Board shall consider as aggravating or mitigating factors the following:

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of repetitions of offenses;

    4. The length of time since the violation;

    5. The number of times the licensee has been previously disciplined by the Board;

    6. The length of time licensee has practiced;

    7. The actual damage, physical or otherwise, caused by the violation;

    8. The deterrent [e]ffect of the penalty imposed;

    9. The [e]ffect of the penalty upon the licensee[']s livelihood;

    10. Any effort of rehabilitation by the licensee;

    11. The actual knowledge of the licensee pertaining to the violation;

    12. Attempts by licensee to correct or stop violation or refusal by licensee to correct or stop violation;

    13. Related violations against licensee in another state including findings of guilt or innocence, penalties imposed and penalties served;

    14. Actual negligence of the licensee pertaining to any violation;

    15. Penalties imposed for related offenses under subsections (1) and (2) above;

    16. Pecuniary benefit or self-gain enuring to licensee;

    17. Any other relevant mitigating or

    aggravating circumstances under the circumstances.

    
    

47. Having considered the facts of the instant case in light of the foregoing provisions of Rule 21X-30.001, Florida Administrative Code, it is the view of the Hearing Officer that the appropriate penalty in the instant case is the imposition of an administrative fine of $1,500.00 and the suspension of Respondent's license for three months, followed by an 18-month period of probation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Board of Veterinary Medicine enter a final order (1) finding Respondent guilty of violating Section 474.214(1)(o), Florida Statutes, for having failed to immobilize Cinnabar's fractured leg; (2) finding Respondent guilty of violating Section 474.214(1)(f), Florida Statutes, for having failed to maintain adequate medical records concerning Cinnabar's March 10, 1989, visit to his office; (3) imposing a $1,500.00 administrative fine, suspending Respondent's license for three months and placing him on probation for a period of 18 months for having committed these violations; and (4) dismissing the remaining charges against Respondent set forth in the Amended Administrative Complaint.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 26th day of December, 1991.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 26th day of December, 1991.

ENDNOTES

1/ Before becoming a veterinarian, Respondent worked as a veterinary technician from 1975 to 1976.

2/ Previously, Respondent also had an office in Boca Raton, Florida. That office, however, was not in operation at the time of the events described in the instant Amended Administrative Complaint.

3/ Aside from his office practice, Respondent does volunteer work at the Broward County Wildlife Case Center and, in addition, from his boat the "Sea Vet," treats and releases injured wild birds found at sea and on the shore.

4/ In dealing with the type of injury suffered by Cinnabar, the first step a veterinarian should take is to assess the blood supply to the toes.

5/ If too much Nexaband Avian is used on an injured bird, or if it is used improperly, it may kill tissue and slow down healing. The evidence in the instant case, however, is insufficient to establish that Respondent was guilty of the excessive or improper use of this substance in his treatment of Cinnabar.

6/ Because he needed to use a magnification device to perform this procedure, he considered it to be "microsurgery."

7/ In any event, it would have been inappropriate for him to have done so for the reasons described in paragraph 6 of the Amended Administrative Complaint.

8/ She subsequently instructed her credit card company, however, not make to make payment. As of the date of the final hearing in this matter, Respondent had yet to be paid by Betts.

9/ There has been no showing that any of the exams for which Betts was charged was unnecessary and of no value, as suggested in paragraph 9 of the Amended Administrative Complaint.

10/ It has not been shown that, in making such a profit, Respondent acted in a manner that was at variance with the customary billing practices of similarly situated veterinarians in his geographic area.

11/ He would have been able to make this determination, without removing the immobilization device, by ascertaining whether there was the smell of dead tissue.

12/ To the extent that the Amended Administrative Complaint alleges that, in treating Cinnabar on March 10, 1989, Respondent committed other acts of negligence and incompetency, the Complaint should be dismissed because the evidence is insufficient to support these allegations.

13/ These are the only items of the bill referenced in the Complaint. Accordingly, any finding of misconduct in connection with Respondent's billing practices must be based upon these referenced charges and no others.

14/ The Hearing Officer, however, has taken this fact into consideration in evaluating Dr. Smith's testimony.

15/ At issue in the instant case is Respondent's treatment of Cinnabar, not his diagnosis.

APPENDIX TO RECOMMENDED ORDER

The following are the Hearing Officer's specific rulings on the findings of fact proposed by the Department and Respondent:

The Department's Proposed Findings of Fact

1-4. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

1. To the extent that this proposed finding suggests that Respondent did nothing to assess the physical condition of the bird, it has been rejected

   because it is not supported by the greater weight of the evidence. Otherwise it has been accepted and incorporated in substance.

   6-7. Accepted and incorporated in substance.

   1. To the extent that this proposed finding suggests that Respondent applied Nexaband Avian to the fracture site, it has been rejected because it is not supported by the greater weight of the evidence. To the extent that it suggests that he applied Nexaband Avian to the epidermal and subepidermal areas around the sutures where there were gaps, it has been accepted and incorporated in substance.

   2. To the extent that this proposed finding suggests that Respondent's use of Nexaband Avian was "not indicated," it has been rejected because it is not supported by the greater weight of the evidence.

   3. Accepted and incorporated in substance.

   4. Rejected because it is more in the nature of a summary of testimony than a finding of fact.

   12-30. Accepted and incorporated in substance.

   1. To the extent that this proposed finding states that Dr. Harrison amputated Cinnabar's leg, it has been accepted and incorporated in substance. Otherwise it has been rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   2. Accepted and incorporated in substance.

   3. To the extent that this proposed finding suggests that Cinnabar was seen during Respondent's regular office hours and that it was unreasonable for Respondent to charge an additional emergency fee, it has been rejected because it is not supported by the greater weight of the evidence. Otherwise it has been accepted and incorporated in substance.

   34-36. Rejected because they relate to matters not charged in the Amended Administrative Complaint.

   1. To the extent that this proposed finding suggests that Respondent's charge for fluid therapy set up was unreasonable in light of the customary billing practices of similarly situated veterinarians in his geographic area, it has been rejected because it is not supported by the greater weight of the evidence.

   2. Rejected because it relates to a matter not charged in the Amended Administrative Complaint.

   3. To the extent that this proposed finding suggests that Respondent's charges for the items referenced therein were unreasonable in light of the customary billing practices of similarly situated veterinarians in his geographic area, it has been rejected because it is not supported by the greater weight of the evidence.

   4. Rejected because it relates to a matter not charged in the Amended Administrative Complaint.

   5. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

   6. To the extent that this proposed finding suggests what a reasonable charge would be in light of the customary billing practices of similarly situated veterinarians in Respondent's geographic area, it has been rejected because it is not supported by the greater weight of the evidence.

   43-44. Rejected because they relate to matters not charged in the Amended Administrative Complaint.

   
   

   Respondent's Proposed Findings of Fact

   
   

   1. Rejected because it is more in the nature of a statement of law than a finding of fact.

5.2.-5.6. Accepted and incorporated in substance.

1. Rejected because it is more in the nature of a summary of, and commentary on, testimony than a finding of fact.

2. First sentence: Accepted and incorporated in substance; Second sentence: Rejected because it is not supported by persuasive competent substantial evidence.

5.8.1.-5.15. Accepted and incorporated in substance.

1. First sentence: To the extent that it states that "Dr. Smith had a telephone conversation with Dr. Greg Harrison while Cinnabar was [at] the Pet Emergency Center," it has been accepted and incorporated in substance. The remaining portion of the sentence has been rejected because it is more in the nature of a summary of testimony than a finding of fact. Second sentence: Accepted and incorporated in substance.

2. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer. 14/

5.18.-5.19. Rejected because they are more in the nature of summaries of testimony than findings of fact.

5.20. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

5.21.-5.22. Accepted and incorporated in substance.

5.23.-5.25. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. 15/

1. Rejected because it is more in the nature of a summary of testimony than a finding of fact.

2. Accepted and incorporated in substance.

3. Rejected because it would add only unnecessary detail to the factual findings made by the Hearing Officer.

4. Rejected because it is more in the nature of a statement of law than a finding of fact.

5. Rejected because it is more in the nature of a summary of testimony than a finding of fact.

6. Accepted and incorporated in substance.

5.32.-5.34. Rejected because they are more in the nature of summaries of testimony than findings of fact.

1. Rejected because it is more in the nature of commentary on testimony than a finding of fact.

2. Rejected because it is more in the nature of a statement summarizing the charges against Respondent than a finding of fact.

11.10-11.13. Accepted and incorporated in substance, except to the extent that they purport to summarize the expert testimony given in this cause.

11.14. Accepted and incorporated in substance.

11.15 Rejected because it would only unnecessary detail to the factual findings made by the Hearing Officer.

COPIES FURNISHED:

Roberta Fenner, Esquire

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Neil F. Garfield, Esquire World Executive Building

3500 N. State Road 7, Suite 333 Fort Lauderdale, Florida 33319

Diane Orcutt, Executive Director Board of Veterinary Medicine Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD OF TIME WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-003492

Orders for Case No: 91-003492