STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, ) BOARD OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 98-3307

)

DONALD J. BECK, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

On January 20, 1999, a formal administrative hearing in this case was held in Clearwater, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Paul F. Kirsch, Esquire

Department of Business and Professional Regulation

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Charles E. Lykes, Jr., Esquire

501 South Fort Harrison Avenue, Suite 101 Clearwater, Florida 33756

STATEMENT OF THE ISSUE

The issue in the case is whether the allegations of the Administrative Complaint are true, and if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Administrative Complaint dated September 3, 1997, the Department of Business and Professional Regulation, Board of Veterinary Medicine (Petitioner) alleges that veterinarian Donald J. Beck (Respondent) was incompetent or negligent in his practice of veterinary medicine in violation of

Section 474.214(1)(r), Florida Statutes.

The Respondent disputed the allegations and requested a formal administrative hearing. The Petitioner forwarded the matter to the Division of Administrative Hearings, which scheduled and conducted the hearing.

The complaint also alleges that the Respondent violated Sections 474.214(1)(f) and 455.241(1), Florida Statutes, by failing to furnish medical and examination records in a timely manner. At the hearing, the Respondent moved for dismissal of the complaint following presentation of the Petitioner's evidence. The motion was granted as to this allegation.

At the hearing, the Petitioner presented the testimony of five witnesses and had Exhibits numbered 1-5 admitted into evidence. The Respondent presented four witnesses, testified on his own behalf, and had Exhibits numbered 1-4 admitted into evidence.

A hearing transcript was filed. Both parties submitted Proposed Recommended Orders.

FINDINGS OF FACT

1. At all time material to this case, the Respondent was licensed as a veterinarian in the State of Florida, license no. VM0004187.

2. The Respondent worked as a veterinarian at Animal Hospital Hyde Park, a combination animal hospital and kennel facility. The facility encompassed approximately 5,000 square feet, and was located at 800 West Kennedy Street, Tampa, Florida.

3. During the Respondent's tenure at Animal Hospital Hyde Park, another veterinarian, Marianne Keim, owned the facility. Ms. Keim operated a boarding business, a grooming center, and a veterinary clinic, all located within Animal Hospital Hyde Park. There is no evidence that the Respondent had an ownership interest in Animal Hospital Hyde Park.

4. The Petitioner presented testimony suggesting that the Respondent was the "responsible veterinarian" for Animal Hospital Hyde Park, and as such was responsible for the actions of all facility employees. The testimony is not supported by the greater weight of the evidence and is rejected.

5. There is no evidence that the Respondent was responsible for the operation of the facility. There is no evidence that the Respondent presented himself to the public or to facility staff as a veterinarian generally responsible for boarded animals.

6. The evidence establishes that the Respondent provided veterinary services by appointment only for animals brought to

   the facility. The Respondent also provided veterinary services by appointment on a "house call" basis.

7. There is no evidence that the Respondent generally provided routine medical services to animals being boarded. Boarded animals received medical treatment from the Respondent only when an animal owner, after being advised by kennel staff of a medical problem, gave approval for the Respondent to treat the identified problem. After receipt of the authorization, kennel staff would take the ill animal to the Respondent's examination room. After receiving the medical attention, the animal would be returned by kennel staff to the boarding area.

8. On February 9, 1996, the Respondent examined two dogs, Casey and Chloe, owned by Mr. and Mrs. Robert Yuill.

9. The Yuills had moved to the Tampa area in January of 1996. The apartment facility where the Yuills lived did not permit large animals inside the housing units.

10. At the time the Respondent met Mr. Yuill, the dogs had been living in the back of Mr. Yuill's Ford truck for three to four weeks.

11. The Respondent examined the animals on February 9, 1996. Both dogs were overweight.

12. At the February 9 examination, Chloe had an ear infection. The Respondent offered to medically treat the infection. Mr. Yuill declined, noting that he had appropriate medication remaining from the animal's former veterinarian.

13. At the February 9 examination, Casey had a foot problem. The Respondent suggested Epsom salt soaks, and subsequently treated the foot with an antibiotic.

14. There is no evidence that the February 9 examination and medical treatment provided at that time, or as follow-up care for problems identified during that examination, was inappropriate or failed to meet acceptable standards of care.

15. From March 23, 1996, to August 12, 1996, the Yuill dogs were boarded at Hyde Park Animal Hospital.

16. Upon admission to the kennel, the dogs remained overweight. The Yuills advised the kennel staff that the dogs were to receive food specifically designed to promote weight loss. The Yuills provided the food to the kennel.

17. In April of 1996, the Respondent performed a successful spay surgery on Chloe, complicated only by the dog's obesity. There is no evidence that the spay surgery or any related follow- up was inappropriate or failed to meet acceptable standards of care.

18. The Yuills took the dogs from the kennel for the Memorial Day weekend. The Yuills testified that the animals were dirty, ungroomed, appeared lethargic, and were infested with fleas. Nonetheless, they returned the animals to the facility at the close of the weekend.

19. The Yuills testified that they advised Ms. Keim of the situation when the animals were returned to the kennel at the end

    of the Memorial Day weekend. Ms. Keim denies that the dogs were not in acceptable condition upon their release for the weekend, and denies being advised of any problem.

20. From Memorial Day weekend until August 10, 1996, the Yuill dogs remained in the kennel facility, unvisited by the Yuills.

21. The Yuills testified that they refrained from visiting the animals after Ms. Keim advised them that family visits were resulting in psychological and behavioral problems for the animals. Ms. Keim denies that she ever advised the Yuills to refrain from visiting the animals.

22. On August 10, 1996, the Yuills came to remove the dogs after being advised that Ms. Keim was closing the facility.

23. Prior to releasing the animals, Marianne Keim weighed Chloe at 54.5 pounds. Casey was too heavy for Ms. Keim to lift and was not weighed.

24. According to Ms. Keim's testimony, the Yuills owed a balance of approximately $1,300 at the time the dogs were removed from the facility. Ms. Keim asserted at the hearing that the bill remains unpaid. The Yuills dispute her recollection.

25. Shortly after retrieving the dogs from the Animal Hospital Hyde Park, the Yuills contacted the Board of Veterinary Medicine and was advised to take the animals for examination by Dr. Jerry Alan Greene at the Academy Animal Hospital.

26. Dr. Greene examined the animals on August 13, 1996.

    Dr. Greene photographed the dogs and performed a number of tests at the expense of the Petitioner.

27. According to the tests, there was an indication that the dogs had hookworms, but there was no other indication of disease or other illness. Blood test results provided no indication of illness.

28. Hookworms can occur when an animal comes into contact with fecal material from another animal. There is no evidence that hookworms resulted from any negligence or poor medical practice by the Respondent.

29. Dr. Greene stated that Ms. Yuill had remarked on Chloe's thirst and possible dehydration. There is no evidence that the dog was dehydrated.

30. Dr. Greene testified that Chloe had otitis externa, an ear infection.

31. According to Dr. Greene's testimony, Chloe's weight upon examination was 46 pounds. Dr. Greene opined that the dog was grossly underweight.

32. The Respondent presented the testimony of Dr. Richard Goldston. The testimony of Dr. Goldston is credited. Based on his review of the photographs, including bone structure and coat of the animal, Dr. Goldston opined that the dog, though perhaps thin, was of a healthy weight. The dog's coat appeared to be healthy. No bones were observed to protrude from the dog's frame.

33. Chloe also had an ailment identified as an "acral lick granuloma," on her lower leg. The condition, a swollen reddish lump generally surrounded by saliva-stained skin, results from excessive licking of an area. There was credible testimony that the licking behavior can initially result from boredom.

34. Although an acral lick granuloma can be visually identified upon examination, there is no debilitation such as limping that would draw attention to the animal. The condition does not result in pain or discomfort to the animal, other than itching. The itching results in further licking, which aggravates the condition.

35. There is no evidence that the Respondent was aware of the granuloma. There is no evidence that boarding staff advised him or sought approval from the Yuills to have the condition treated.

36. According to Dr. Greene's testimony, Casey remained overweight and had a slight foot problem. He advised the Yuills to treat the problem area with Epsom salt soaks.

37. Several boarding kennel employees testified at the hearing. All were very familiar with Casey and Chloe, noting that their familiarity was related to the dogs long-term boarding status. According to the boarding employees, the dogs were healthy and energetic while at the kennel.

    CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

39. The Petitioner has the burden of proving by clear and convincing evidence the allegations against the Respondent. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987). In this case, the burden has not been met.

40. Section 474.214(1)(r), Florida Statutes, provides as follows:

    Disciplinary proceedings.

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

       * * *

       (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.

       
       

       Section 474.214(2), Florida Statutes, provides as follows:

       
       

    2. When the board finds any applicant or veterinarian guilty of any of the grounds set forth in subsection (1), regardless of whether the violation occurred prior to licensure, it may enter an order imposing one or more of the following penalties:

       1. Denial of certification for examination or licensure.

       2. Revocation or suspension of a license.

       3. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

       4. Issuance of a reprimand.

       5. Placement of the veterinarian on probation for a period of time and subject to such conditions as the board may specify, including requiring the veterinarian to attend continuing education courses or to

          work under the supervision of another veterinarian.

       6. Restricting the authorized scope of practice.

       7. Imposition of costs of the investigation and prosecution.

       8. Requiring the veterinarian to undergo remedial education.

41. The evidence fails to establish that the Respondent failed 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.

42. The Petitioner asserts that the Respondent had a duty to provide medical care to all animals housed within the kennel. The greater weight of the evidence fails to support the assertion.

43. The Petitioner asserts that, absent medical evidence to the contrary, malnutrition and parasitic infection caused Chloe's weight loss. There is no credible evidence that the Chloe was malnourished. Both animals were fed diets intended to reduce their weights. Both were housed in the same facility. Both dogs were infected with hookworms. While Casey's excessive weight appears to have remained constant, Chloe's weight declined. It is not possible based on the evidence presented at hearing to determine the reasons for the weight loss. In any event, the evidence fails to establish that Chloe's weight loss was unhealthy.

44. The Yuills appear to have believed that the animals would receive continuing medical attention while kenneled at the Animal Hospital Hyde Park, and that the other health issues presented by the animals at their discharge from the facility on August 10, 1999, result from malpractice by the Respondent. There is no credible evidence that the Respondent or any other employee at the facility suggested to the owners that continuing medical attention would be provided as a part of the boarding fees. There is no evidence that the owners ever asked the Respondent or the facility owner whether continuing medical attention was provided as a part of the boarding fees. As early as Memorial Day, the Yuills were apparently unhappy with the

conditions provided for the animals, yet Casey and Chloe remained at the kennel, apparently unobserved by the Yuills for a period of approximately three months.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Business and Professional Regulation enter a Final Order DISMISSING the Administrative Complaint filed in this case.

DONE AND ENTERED this 29th day of March, 1999, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1999.

COPIES FURNISHED:

Paul F. Kirsch, Esquire Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Charles E. Lykes, Jr., Esquire

501 South Fort Harrison Avenue, Suite 101 Clearwater, Florida 33756

William Woodyard, General Counsel Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

John Currie, 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 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order must be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 98-003307

Orders for Case No: 98-003307