STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) Case Nos. 95-0324

) 95-0327

MARIANNE T. REIM, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

On December 4, 1996, a formal administrative hearing was held in these consolidated cases in Tampa, Florida, before Richard Hixson, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Miriam S. Wilkinson, Esquire

James Manning, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Michael J. Kinney, Esquire

KINNEY, FERNANDEZ and BOIRE, P.A.

Post Office Box 18055 Tampa, Florida 33679

STATEMENT OF THE ISSUES

Whether Respondent's B license to practice veterinary medicine in the State of Florida should be suspended, revoked, or otherwise disciplined for the reasons set forth in the Administrative Complaints filed in the above-styled consolidated cases.

PRELIMINARY STATEMENT

Case No. 95-0324

On December 8, 1994, Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, filed an Administrative Complaint charging Respondent, MARIANNE T. KEIM, D.V.M., with two counts of violating Chapter 474, Florida Statutes, governing the practice of veterinary medicine. Specifically, the Administrative Complaint alleged that Respondent was guilty of negligence and incompetence in performing a spay on a canine named Godly Panatela on June 1, 1994. The Administrative Complaint alleged that Respondent had failed to properly suture the incision, and that Respondent had negligently left a gauze sponge inside the dog.

Case No. 95-0327

On December 8, 1994, Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, further filed an Administrative Complaint against Respondent, MARIANNE T. KEIM, D.V.M., charging three counts of violations of Chapter 474, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent falsely reported to the owner that the remains of a feline named Molly Sherwood had been cremated, that Respondent failed to allow access to her clinic to authorized inspectors, that Respondent failed to maintain sanitary conditions at her clinic, and that Respondent retained outdated medications on the premises of her clinic.

Respondent filed a timely request for formal hearing, and on January 26, 1995, the cases were referred to the Division of Administrative Hearings. Pursuant to motion of Petitioner, the cases were consolidated without objection for hearing.

Formal hearing was scheduled for July 6-7, 1995. In accordance with the agreed motion of the parties, on June 8, 1995, the cases were placed in abeyance pending the resolution of a prior case against Respondent. On May 10, 1996, Petitioner's motion to amend the Administrative Complaints was granted without objection, and the cases were scheduled for formal hearing. Formal Hearing was held December 4, 1996.

At hearing Petitioner presented the testimony of eight witnesses: Patrick Hanna, investigator; Julie Panatela, complainant; Raja Panatela, complainant; G. Brooks Buck, D.V.M., subsequent treating veterinarian; Nan Sherwood, complainant; Diane Gusset, investigator; Dennis Force, investigator; and Gary Elision, D.V.M., expert in veterinary

medicine. Petitioner also presented six exhibits. Ruling was reserved on Exhibit 6 relating to Respondent's prior disciplinary history. For the reasons set forth below, Exhibit 6 is also received in evidence. The parties further agreed to the admission of joint Exhibits 1 and 2, the depositions of Lori Y. Burden and Robert W. Sherwood.

Respondent testified in her own behalf, and also presented the testimony of three witnesses: Shady Jones, a former employee; Anthony Touchstone, an employee; and, Cynthia Durban, an employee. The transcript of the proceedings was filed on December 16, 1996. On December 30, 1996, Petitioner and Respondent each filed a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, is the agency of the State of Florida vested with statutory authority for instituting disciplinary proceedings to enforce the provisions of Chapter 474, Florida Statutes, governing the practice of veterinary medicine.

   
   

2. Respondent, MARIANNE T. KEIM, D.V.M., is, and at all times material hereto has been, a licensed veterinarian in the State of Florida, holding license number VM 0005113.

   
   

   Findings as to Case No. 95-324

   
   

3. On May 31, 1994, Mrs. Julie Panatela presented her six-month old female canine named Godly to Respondent's clinic in Tampa, Florida, for the purpose of having a spay procedure performed. Godly is a mixed-breed dog of primarily golden retriever parentage. Mrs. Panatela left Godly at Respondent's clinic at approximately 8:30 a.m. At that time Godly was in good health, and had no prior surgical procedures.

   
   

4. On June 1, 1994, Respondent performed a spay procedure on Godly. Respondent was assisted during the surgery by Lori Burden, a veterinary assistant employed by Respondent.

   
   

5. There were no gauze sponges present in the dog's abdomen when Respondent opened the body to perform the spay procedure.

   
   

6. A canine spay procedure, an ovariohysterectomy, is the surgical removal of the dog's uterus and both ovaries.

   The procedure requires the dog to be placed under a general anesthesia. A sterile prep scrub is done. An incision is made in the abdomen below the umbilicus. In removing an ovary, clamps are placed on the ovarian pedicle to compress the tissue so that ligatures, i.e. sutures, may be tightly applied to the area. The purpose of this procedure is to close the blood supply so that the ovary may be removed.

   Similarly a clamp and ligatures are applied to the uterine body so that the organ may be removed. After removal of the uterus and ovaries, the abdomen is closed, usually in three layers. First the ventral midline, linea alba, is closed, then the subcutaneous layer, and finally the skin. There is little bleeding associated with this procedure. While there may be some seepage, only a few tablespoons of fluid is normal.

   
   

7. Prudent veterinary practice requires the counting of sponges during a surgical procedure.

   
   

8. Respondent has performed hundreds of canine spay procedures. It is Respondent's normal practice to always hold sponges in her fingers during surgery, and not to place sponges unattached inside an animal's body. As a routine practice Respondent's employed assistants are instructed to count sponges during any surgical procedure.

   
   

9. On June 1, 1994, Lori Burden was the veterinary assistant responsible for counting sponges during the spay procedure Respondent performed on Godly. Six sponges were used during the procedure, four while inside the dog, and two during closing. Ms. Burden believed the sponge count to be accurate, and that all sponges were accounted for, and properly disposed of after Respondent completed the spay procedure.

   
   

10. On the afternoon of June 1, 1994, Mrs. Panchal's husband, Raja Panatela, picked Godly up from Respondent's clinic and took the dog home. The Panchals observed that Godly was very lethargic, unusually inactive, and had difficulty going to the bathroom. Additionally, the Panchals observed about a quarter of a cup of pinkish fluid draining from the incision site. Goldie's condition continued to deteriorate that evening. More fluid was draining from the incision, and the dog was increasingly listless. The Panchals became extremely concerned about Goldie's worsening condition, and on the next day, June 2, 1994, Mr. Panatela returned with Godly to Respondent's clinic. Mr. Panatela reported to

    Respondent his observations, and expressed his concerns regarding Goldie's condition. Respondent examined the incision and stated to Mr. Panatela that it looked fine. Respondent did not diagnose any significant problems with Godly, and placed a belly wrap around the dog's abdomen to absorb any seepage.

    
    

11. Mr. Panatela returned home with Godly. During the evening Goldie's condition continued to worsen. The dog remained listless and more fluid was discharging from the incision.

    
    

12. The next morning, June 3, 1994, Mrs. Panatela discussed the dog's condition with her neighbor. Later that morning, at her neighbor's suggestion, the Panchals presented Godly to G. Brooks Buck, D.V.M., a veterinarian operating a clinic in Valrico, Florida. The Panchals informed Dr. Buck that Godly had been spayed on June 1, 1994, and that since the procedure was performed the dog had been abnormally listless, had difficulty going to the bathroom, and that significant amounts of fluid were discharging from the incision site. The Panchals did not inform Dr. Buck at this time that Respondent had performed the spay procedure on Godly.

    
    

13. Dr. Buck's initial observation of the incision site revealed no problems, and the skin incision appeared well sutured; however, when Dr. Buck picked Godly up to place her on the floor a large amount of fluid, approximately one-half cup, discharged from the incision site. Dr. Buck then became very concerned, and recommended to the Panchals that the incision be reopened so that he could determine the cause of the fluid discharge. The Panchals agreed, and on June 3, 1994, Dr. Buck reopened the incision.

    
    

14. During his surgery, Dr. Buck found no signs that the subcutaneous tissue layer had been sutured. Dr. Buck further observed that two-thirds of the caudal layer incision through the abdominal wall had been sutured with chromic catgut and steel; however, the final third of the caudal layer incision showed no sign of having been sutured. Dr. Buck observed fluid leaking through the unsutured portion of the caudal incision into the abdominal cavity.

    
    

15. Inside the abdominal cavity Dr. Buck observed that the omentum appeared red and irritated, as did the peritoneal wall. Dr. Buck also observed a wad-like mass within the abdominal cavity which, upon closer inspection, he discovered

    to be a surgical sponge that had become surrounded by the omentum. Dr. Buck cut the retained sponge from the omentum and removed the sponge from the dog's abdomen.

    
    

16. After removing the retained sponge, Dr. Buck further observed that the ovarian and uterine stumps were irritated, and that the right ovarian stump was leaking blood from a nicked artery. Dr. Buck sutured the ovarian and uterine stumps, as well as all three layers of incision, and discharged Godly.

    
    

17. Godly recovered from Dr. Buck's surgery without further complications, and on June 13, 1994, Dr. Buck removed the sutures. Godly is now in good health.

    
    

18. It is standard veterinary practice to count sponges before and after surgery. It is standard veterinary practice in a canine spay procedure to suture the subcutaneous layer of incision. It is standard veterinary practice in a canine spay procedure to completely suture the linea alba incision.

    
    

19. Excessive discharge of fluid after a canine spay procedure indicates an abnormality. It is standard veterinary practice to recognize that excessive fluid discharge after a canine spay procedure indicates an abnormality and requires treatment.

    
    

    Findings as to Case No. 95-327

    
    

20. On Wednesday, July 27, 1994, Mrs. Nan Sherwood presented her cat, Mollie, to Respondent's clinic. Mrs. Sherwood informed the clinic staff that Mollie was acting unusually shy and had no appetite. At this time Mrs. Sherwood did not see or speak with Respondent. Mrs. Sherwood left Mollie at Respondent's clinic for treatment.

    
    

21. Mrs. Sherwood was very concerned about Mollie's condition. When Mrs. Sherwood had not received any information from Respondent, she returned to Respondent's clinic on Friday, July 29, 1994. Mrs. Sherwood saw Mollie, observed that the cat's condition had worsened, and requested to speak to Respondent. A clinic staff technician told Mrs. Sherwood that Respondent would contact her later. Respondent did not, however, contact Mrs. Sherwood. When Mrs. Sherwood did not hear from Respondent, she placed a call to Respondent's emergency telephone number on the evening of July

    29, 1994. Mrs. Sherwood did not hear from Respondent that evening.

    
    

22. The next morning, Saturday, July 30, 1994, Respondent telephoned Mrs. Sherwood and informed her that the cat was being administered fluids, that diagnostic tests on Mollie were being conducted, and stated that she would call Mrs. Sherwood again on Sunday, July 31, 1994, between 11:00

    a.m. and 1:00 p.m.

    
    

23. On Saturday night, July 30, 1994, Respondent returned to her clinic and examined Mollie. At approximately 11:30 p.m., while Respondent was examining Mollie on the examination table, the cat died. The cause of death was advanced kidney disease and diabetes. The medical therapy administered by Respondent to Mrs. Sherwood's cat, Mollie, met acceptable standards of veterinary practice.

    
    

24. After the cat's death, Respondent had the cat's body placed in the freezer at her clinic along with other animal remains scheduled for cremation.

    
    

25. Due to a personal emergency, Respondent did not place a call to Mrs. Sherwood until after 3:00 p.m. on Sunday, July 31, 1994. At this time Mrs. Sherwood was in the shower, and her husband, Robert Sherwood, answered the telephone. Respondent informed Mr. Sherwood that the cat had died. Mr. Sherwood was very concerned that Respondent had been unresponsive to his wife and had failed to inform them in a timelier manner that the cat had died. Respondent asked Mr. Sherwood about the disposal of the cat's remains, and Mr. Sherwood informed Respondent that his wife would contact her later. Mr. Sherwood did not authorize cremation of the cat's remains.

    
    

26. On Monday, August 1, 1994, Mrs. Sherwood spoke by telephone with Respondent. Mrs. Sherwood was interested in understanding the cause of her cat's death and why Respondent had not notified her earlier regarding the cat's death. Respondent told Mrs. Sherwood about her personal problems which had occurred on the weekend. Mrs. Sherwood was not satisfied with this explanation, but told Respondent she would come by for Mollie's body. Mrs. Sherwood did not authorize cremation of Mollie's body.

    
    

27. On Wednesday, August 3, 1994, Mrs. Sherwood again spoke with Respondent by telephone. Mrs. Sherwood told

    Respondent she was coming to Respondent's clinic to pick up Mollie's body. At this time Respondent told Mrs. Sherwood that the cat's body had probably been taken on Tuesday for cremation, and that Mrs. Sherwood could come later to pick up the ashes.

    
    

28. At this point Mrs. Sherwood became extremely upset because she had not authorized cremation of Mollie's remains. Mrs. Sherwood then called the offices of Petitioner to inform the Department of the circumstances surrounding Respondent's actions in regard to the death of Mollie. That same day, August 3, 1994, Mrs. Sherwood went to the Petitioner's office in Brandon, Florida, met with Diane Gusset, an agency investigator, and filed a statement detailing these events. Mrs. Sherwood also signed a form for Ms. Gusset authorizing the release of Mollie's records, as well as Mollie's remains, if still on the clinic premises.

    
    

29. On Thursday, August 4, 1994, at approximately 10:00 a.m., Ms. Gusset, accompanied by Dennis Force, also an agency investigator, went to Respondent's clinic for the purpose of retrieving the records of Mrs. Sherwood's cat, and the cat's remains if on the premises. Upon arrival at the clinic, Investigator Force identified himself and Ms. Gusset to Respondent's staff as officials of the Department and requested access to the clinic. The staff went to inform Respondent about the presence of the Department investigators. During this time, the Department investigators proceeded into the clinic. Ms. Gusset entered the surgery area where Respondent was performing surgery. Ms. Gusset asked for the Sherwood records, but Respondent informed her the records were not on the premises.

    
    

30. While inside the clinic, the investigators observed that the kennels had not been recently cleaned, and dogs in the outside kennels needed water.

    
    

31. The investigators also saw eight containers of medication which appeared out of date; however, the medication containers contained small amounts of medicine, and there is no evidence that Respondent administered out-of-date medication. One container of hydrogen peroxide which appeared out of date was actually a reusable container.

    
    

32. Ms. Gusset and Mr. Force also discovered the remains of Mrs. Sherwood's cat, Mollie, in the freezer at Respondent's clinic.

    
    

33. By this time Respondent had contacted her attorney who requested Ms. Gusset and Mr. Force leave the clinic premises. After consulting with the Department's attorney, the investigators left the clinic.

    
    

34. Respondent's clinic staff regularly cleans the premises. On the morning of August 4, 1994, when the Department investigators arrived, the clinic staff was in the process of, but had not yet completed, the cleaning of the kennel area.

    
    

35. Respondent has instituted procedures in her clinic to monitor the dispensing of medications, and to update the effective dates of medications administered. There is no evidence Respondent administered outdated medication.

    
    

    CONCLUSIONS OF LAW

    
    

36. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Sections 120.57(1) and 455.225(5), Florida Statutes.

    
    

37. Petitioner has the burden of proving the allegations of the Administrative Complaints by clear and convincing evidence. Ferris v. Turlinqton, 570 So.2d 292 (Flat 1987); Department of Banking and Finance v. Osborne Stern and Company, 670 So.2d 932 (Flat 1996).

    
    

38. "Clear and convincing evidence" requires that evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to facts in issue; 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 (Flat 4th DCA 1983).

    
    

    Conclusions as to Case No. 95-324

    
    

39. Sections 474.214(1) (a) and (r),Florida Statutes provide:

    
    

    Disciplinary proceedings.

    1. The following acts shall constitute grounds for which the disciplinary actions in

       subsection (2) may be taken:

       
       

       * * *

       
       

       1. Fraud, deceit, negligence, incompetency, or misconduct, in or related to the practice of veterinary medicine.

          
          

          * * *

          
          

          (r) Being guilty of incompetence or negligence by failing to practice medicine with that level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances.

          
          

40. Standard veterinary practice requires that sponges be properly accounted for during and after all surgical procedures. Leaving a sponge inside an animal's abdominal cavity after surgery falls below the level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances.

    
    

41. Standard veterinary practice requires that a veterinarian recognize that an excessive amount of fluid drainage subsequent to surgery is abnormal. The failure of a veterinarian to properly diagnose that an excessive drainage of fluid after surgery indicates an abnormality falls below the level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances.

    
    

42. Standard veterinary practice requires that in performing a canine spay procedure, a veterinarian properly suture all three layers of incision. The failure of a veterinarian to properly suture all three layers of incision falls below the level of care, skill, and treatment which is recognized by a reasonably prudent veterinarian as being acceptable under similar conditions and circumstances.

    
    

43. The evidence is clear and convincing that Respondent in performing a canine spay procedure on the dog Godly on June 1, 1994, failed to properly suture all three layers of incision, and left one sponge inside the dog's abdomen. The evidence is also clear and convincing that when the owners returned with the dog after surgery and explained the excessive fluid draining from the incision, Respondent failed to properly diagnose the dog's postsurgical problems. Accordingly, the evidence establishes that Respondent violated Sections 474.214(1)(o) and (r) Florida Statutes.

    
    

    Conclusions as to Case No. 95-327

    
    

44. Sections 474.214(o),(v), and (x), Florida Statutes, provide:

    
    

    Disciplinary proceedings.(1) The following acts shall constitute grounds for which the disciplinary actions in subsection (2) may be taken:

    
    

    * * *

    
    

    (o) Fraud, deceit, negligence, incompetency, or misconduct, in or related to the practice of veterinary medicine.

    
    

    * * *

    
    

    (v) Failing to keep the equipment and premises of the business establishment in a clean and sanitary condition, having a premises permit suspended or revoked pursuant to s. 474.215, or operating or managing premises that do not comply with requirements established by rule of the board.

    
    

    * * *

    
    

    (x) Refusing to permit the department to inspect the business premises of the licensee during regular business hours.

    
    

45. The evidence is not clear and convincing that Respondent was fraudulent or deceitful in her representations

    to Mrs. Sherwood regarding the disposal of the remains of the cat, Mollie. The evidence reflects that Respondent properly treated Mollie, and that under the circumstances Respondent called Mrs. Sherwood within a reasonable time to inform her of the cat's death. Respondent specifically asked Mr. Sherwood for instructions regarding disposal of the cat's remains.

    Placing the cat's body in the freezer was reasonable under these circumstances. The evidence shows that Respondent did not specifically state to Mrs. Sherwood that the cat had been cremated, but indicated that the cat may have been taken for cremation. In fact, the cat was not cremated. While there was confusion regarding the disposal of the cat's body, the evidence is not sufficient to establish fraud or deceit in the practice of veterinary medicine. Accordingly, the evidence fails to establish a violation of Section 474.214(1) (a), Florida Statutes.

    
    

46. The evidence is not clear and convincing that Respondent's clinic was in an unclean and unsanitary condition. The Department inspectors testified to several general observations of unsanitary conditions on August 4, 1994, however, none of these deficiencies was documented at the time, nor were the deficiencies specifically delineated. Moreover, the evidence reflects that the clinic staff continuously cleaned the clinic, and were in the process of cleaning when the agency inspectors arrived. Accordingly, the evidence fails to establish a violation of Section 474.214(1) (v), Florida Statutes.

    
    

47. The evidence is not clear and convincing that Respondent failed to permit the Department to conduct an inspection of the clinic premises on August 4, 1994. The evidence shows that the Department inspectors went to Respondent's clinic for the primary purpose of retrieving the records of the Sherwood cat, and the cat's body. The evidence is not clear that the Department investigators identified themselves as inspectors. The evidence does not reflect that the Department investigators requested to conduct an inspection of the premises, nor that the Department investigators were prepared to do so at that time. Accordingly, the evidence fails to establish a violation of Section 474.214(1)(x), Florida Statutes.

    
    

48. The evidence is not clear and convincing that Respondent retained or administered outdated medications. The evidence reflects that a small amount of outdated medication was remaining in some bottles; however, Respondent maintains

    proper procedures to address the disposal of outdated medication, and there is no evidence of the administration of such medication.

    
    

    Penalty

    
    

49. The Board of Veterinary Medicine is empowered to revoke, suspend, or otherwise discipline the Respondent's license to practice veterinary medicine in the State of Florida. Section 474.214(2), Florida Statutes.

    
    

50. In imposing a penalty, the Board may consider evidence of mitigating or aggravating circumstances, and such matters should be included as part of the record for the Board's consideration. O'Connor v. Department of Professional Regulation, 566 So.2d 549 (Flat 2d DCA 1990); One v. Department of Professional Regulation, 565 So.2d 1384 (Flat 5th DCA 1990).

    
    

51. Having concluded in Case No. 95-324 that Respondent violated Sections 474.214(1)(o) and (r), Florida Statutes, it is appropriate to consider Respondent's past violations as evidence by Petitioner's Exhibit 6 which is deemed admissible for these purposes.

    
    

52. In reviewing the prior violations and the circumstances of the present cases, it appears that Respondent requires additional training in organizational skills, and remedial assistance in veterinary medical therapy.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Veterinary Medicine enter a final order in DOAH Case No. 95-0324 suspending Respondent's license to practice veterinary medicine for a period of six months, placing Respondent on probation for a period of two years under supervised practice, imposing a fine of $1000, and requiring Respondent to attend additional continuing education courses in organizational skills, and veterinary medical therapy. It is further recommended that the Board of Veterinary Medicine enter a final order in DOAH Case No. 95-0327 dismissing the Administrative Complaint.

RECOMMENDED this 17th day of January, 1997, in Tallahassee, Florida.

Hearings

Hearings

RICHARD HIXSON

Administrative Law Judge Division of Administrative

The DeSoto Building 1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative

this 17th day of January, 1997.

COPIES FURNISHED:

Miriam S. Wilkinson, Esquire James Manning, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Michael J. Kinney, Esquire KINNEY, FERNANDEZ and BOIRE, P.A.

Post Office Box 18055 Tampa, Florida 33679

Lynda L. Goodgame, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Susan Foster, Executive Director Board of Veterinary Medicine Department of Business and

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 within fifteen (15) days from the date of 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: 95-000324

Orders for Case No: 95-000324