STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BOARD OF VETERINARY ) MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 77-1841

)

LELAND C. KAY, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on February 22, 1973, in Ft. Myers, Florida, before Stephen F. Dean, assigned hearing officer of the Division of Administrative Hearings.

This case was presented on Petitioner's Second Amended Complaint, filed after the pre-hearing conference and pre-hearing conference order dated January 31, 1978. The Second Amended Complaint charged Leland Kay, D.V.M., was guilty of habitual use of intoxicating liquors, narcotics and/or stimulants to such an extent as to incapacitate him from performing his professional obligations and duties contrary to Section 474.31(22), Florida Statutes; was guilty of professional incompetency, contrary to Section 474.31(23), Florida Statutes, was guilty of unprofessional or unethical conduct and had engaged in the practice of veterinary medicine in a manner contrary to the established standards of professional conduct contrary to the provisions of Section 474.31(12), Florida Statutes; was guilty of conduct reflecting unfavorably upon the profession of veterinary medicine contrary to Section 474.31(13), Florida Statutes, was guilty of gross malpractice contrary to the provisions of Section 474.31(11 ), Florida Statutes; and was guilty of practicing veterinary medicine without a license while his license was under suspension contrary to Sections 474.14 and 474.31(1), Florida Statutes. Respondent waived notice on this complaint.

At the commencement of the fact finding hearing, Respondent moved to strike Exhibit 1, a copy of the notice of emergency suspension hearing of September 20, 1977, together with the certificate of receipt of said notice by the Respondent; Exhibit 2, a copy of the emergency suspension order of the Board dated October 13, 1977, and affidavits attached thereto; and Exhibit 5, a copy of the transcript of the emergency suspension hearing of September 20, 1977. This motion was taken under advisement. At the hearing, the parties stipulated to the introduction of certain hospital records of Dr. Leland Kay relative to his admission to Sarasota Palms Hospital on March 25, 1977, for treatment of

alcohol-related problems; the fact that Dr. Kay was hospitalized as an in- patient from March 25, 1977, until April 20, 1977, at Sarasota Palms Hospital for treatment of alcohol-related problems; the fact that Dr. Kay was treated as an out-patient from April 21, 1977 until May 4, 1977 at Sarasota Palms Hospital for alcohol-related problems; a letter from Jean Lucier, dated January 31, 1978, verifying treatment of Dr. Kay at Sarasota Palms Hospital; a letter of November 28, 1977, of Dr. Ronald Shello, Psychiatrist; an affidavit of Patricia Driscoll,

dated December 28, 1977, and an affidavit of Junelle Cook, dated December 25, 1977.

Respondent also moved to dismiss Count VI of the Administrative Complaint prior to the commencement of the hearing and renewed this motion at the conclusion of the hearing. These motions were based on the assertion that the emergency suspension order of the Board was entered subsequent to proceedings which were procedurally incorrect; that the emergency suspension order was ineffective to suspend the Respondent's license; and therefore, the Respondent could not be charged with practicing without a license. These motions were taken under advisement and addressed under the conclusions of law in this recommended order.

The Board presented various witnesses against the Respondent. The Respondent testified and presented witnesses in his behalf. The factual issues were as follows:

1. Whether Leland Kay was addicted to intoxicating liquors, narcotics, and/or stimulants?

   
   

2. If so, whether Kay was incapacitated to such an extent that he could not perform his professional duties and obligations?

   
   

3. Whether Dr. Kay used non-sterile procedures?

   
   

4. Whether Dr. Kay violated the standards of professional care as it relates to the administration of the anesthesia, cropping ears, surgery and diagnosis in his practice of veterinary medicine?

   
   

5. Whether Dr. Kay violated an emergency order suspending his license if the emergency order was effective?

APPEARANCES

For Petitioner: Robert A. Pierce, Esquire

Suite 201, Ellis Building 13011 Executive Center Drive Tallahassee, Florida

For Respondent: Melvin R. Horne, Esquire

800 Barnett Bank Building Post Office Drawer 1140 Tallahassee, Florida

FINDINGS OF FACT

1. Dr. Leland Kay is a doctor of veterinary medicine, holding a license issued by the Florida State Board of Veterinary Medicine.

   
   

2. Dr. Leland Kay has a drinking problem and prior to March, 1977, was drinking to an extent that he could not keep normal office hours. There is no evidence to support a finding that Dr. Kay treated any patient while intoxicated.

   
   

3. From March 25, 1977, until April 20, 1977, Dr. Kay was hospitalized for treatment of his drinking and other personal problems which had led to a suicide attempt on March 25, 1977. Dr. Steele was Dr. Kay's treating physician and he

   placed Dr. Kay on the drug Antabuse during the period of Kay's initial hospitalization.

   
   

4. Antabuse is a drug that causes a violent reaction on the part of the person who takes it when the person ingests alcohol. Antabuse is used in the treatment of patients who abuse alcohol. Its purpose is to keep the patient free from alcohol and to provide the opportunity for treating the patient through other forms of therapy. Dr. Kay remained under Dr. Steele's care until August, 1977.

   
   

5. Between April 19, 1977, and August 1977, Dr. Kay returned to his practice. During this period Dr. Kay experienced some problems, but was able to maintain regular office hours and to control his drinking problem and meet his professional obligations.

   
   

6. In August, 1977, Dr. Kay suffered a violent Antabuse/alcohol reaction, which was not the result of alcohol ingestion but was the result of external use of alcohol. Dr. Kay was bathing his arms to relieve the itching caused by Bockhard's Impetigo. This was the result of Dr. Kay having scratched his arms and infecting the hair follicles due to itching which was a side effect of the administration of Antabuse.

   
   

7. The emergency medical technicians who treated Dr. Kay on August 18, 1977, concluded erroneously that the sores on Dr. Kay's arms from the Bockhard's Impetigo were "needle tracks" and that Dr. Kay was addicted to some injectable drug. Dr. Kay had been examined and treated by Dr. Charles Eby, an M.D. specializing in dermatology, on August 17, 1977. Dr. Eby examined and treated the sores on Dr. Kay's arms injecting each of them with a derma-jet, a device which injects medicine through the skin by the use of compressed air. Dr. Eby did not see any "needle tracks" as reported by the emergency medical technicians. What the emergency medical technicians apparently observed were the sores from the Bockhard's Impetigo and the after effects of the derma-jet.

   
   

8. Dr. Kay has used sterile techniques and has used surgical and anesthetic procedures that comport with acceptable professional standards in the practice of veterinary medicine.

   
   

9. Since May 1977, Dr. Kay has controlled his drinking problem and has received treatment for his personal and drinking problems. He is currently under treatment by Dr. David Loiry, a clinical psychologist. Dr. Loiry is of the opinion that Dr. Kay can meet his professional obligations; and while Dr. Kay is not symptom free, he is making progress in coping with his personal problems. Dr. Loiry expressed the opinion that if Dr. Kay were permitted to practice veterinarian medicine, he could meet all of his professional obligations.

   
   

10. The emergency suspension order of the Board of Veterinary Medicine was invalid.

    
    

    CONCLUSIONS OF LAW

    
    

11. Dr. Kay is charged with various violations of Chapter 474, as specifically set out in the introduction to this order. The record supports the finding that prior to March, 1977, Dr. Kay was addicted to alcohol and used it to an extent that he could not keep regular office hours and it was necessary for his associates to take care of his patients. There is nothing in the record to support a finding that, subsequent to his hospitalization for treatment in

    April and March, Dr. Kay was unable to meet his professional obligations. There is nothing in the record to support the finding that Dr. Kay treated any patients at any time while he was intoxicated. Dr. Kay's conduct prior to March, 1977, can be considered a violation of conduct reflecting adversely on the profession, unprofessional conduct, or addiction to habitual use of alcohol. However, the Board cannot use a shotgun charge based on a single act or course of conduct and thereafter find Dr. Kay guilty of several violations of the statutes. It is clear that the statute that is most applicable is Section 474.31(22) , Florida Statutes, prohibiting addiction to the habitual use of alcohol.

    
    

12. Although Dr. Rohlk testified that Dr. Kay used unsterile instruments and inadequate amounts of anesthesia, Dr. Rohlk's testimony is specifically rejected because it lacks credibility. Similarly, testimony was presented by a client that Dr. Kay had used an improper technique in taping her dog's ears. The client was unable to present admissible testimony of the standard of professional care in cropping and treating dog's ears. No other credible testimony was introduced concerning Dr. Kay's lack of professional care in cropping and treating dogs' ears. Testimony was received from Dr. Van Roekel, D.V.M., that the standard of care used by Dr. Kay was appropriate. Similarly,

    although testimony was received that Dr. Kay had diagnosed two horses, there was no showing by the Board of a subsequent examination by another veterinarian, and testimony by that veterinarian regarding any error in Dr. Kay's diagnosis. The Board's lay witness testified as to what the other veterinarian had told her, but this testimony is hearsay and a finding in this cause cannot be based upon it.

    
    

13. Count VI of the Administrative Complaint relates to the allegations that Dr. Kay practiced veterinarian medicine without a license. This charge is based upon the Board's suspension of Dr. Kay's license. The Respondent has raised the validity of the Board's suspension in its motions to dismiss filed prior to and after the hearing. In addition, the Respondent challenged the introduction of the records relating to the Board's action in suspending Dr. Kay by means of a Motion to Strike portions of these records.

    
    

14. The records of the Board's emergency suspension to include the affidavits of those persons upon which the Board based its decision to suspend Dr. Kay will be received into evidence and the Motion to Strike by the Respondent is denied. However, these records are received for the limited purpose of determining whether the Board's action was in accordance with the procedures provided in Chapter 120, and the affidavits are admitted for the limited purpose of determining when the affidavits were taken. These records reveal that by letter dated September 15, 1977, the Board notified Dr. Kay of a hearing on September 20, 1977, to consider his emergency suspension. Dr. Kay received this letter on September 17th, and appeared before the Board on September 20th. On September 20th, after consideration of the allegations against Dr. Kay, the Board voted not to suspend Dr. Kay. On October 13, 1977, at a regular meeting of the Board, the question of suspending Dr. Kay's license, was raised for discussion under old business. No notice was given to Dr. Kay of the Board's intention to reconsider his suspension on October l3, 1977. Based upon information obtained by the Board's investigators from affidavits taken on September 26 and September 27 the Board voted to suspend Dr. Kay's license. It is clear from the record that at least two board members had knowledge of the information prior to the meeting of October 13, and that the affidavits had been in the hands of the Board's investigators for nearly two weeks prior to the October 13 meeting. No notice was given Dr. Kay or Dr. Kay's counsel of the pending reconsideration of his suspension before the Board on October 13.

15. Section 120.60(6), Florida Statutes, grants authority to licensing authorities to make an emergency suspension on a summary basis, but subject to the requirements of Section 120.54(9), Florida Statutes, regarding agencies making emergency rules. Section 120.54(9), Florida Statutes, directly addresses emergency rules and establishes certain requirements which must be met even in an emergency. In summary, Section 120.54(9), Florida Statutes, permits an agency to adopt an emergency rule by any procedure fair under the circumstances, provided the procedure provides at least the procedural protections of the statutes, the Florida Constitution, and the United States Constitution. These procedural requirements are applicable to emergency suspensions.

    
    

16. Procedural due process requires that notice be given an individual of a pending action effecting the individual's license. The failure to give reasonable notice under the circumstances of such a pending action is a denial of procedural due process.

    
    

17. The record is clear that Dr. Kay received no notice of the Board's intention to act upon an emergency suspension of his license of October 13th. Under the circumstances in which the affidavits upon which the Board's action was based had been available or been known to the Board for nearly two weeks, the failure to give reasonable notice was not fair under the circumstances and further violates the basic procedural guarantees of due process of the Florida Statutes, the Florida Constitution and the United States Constitution. The Board's failure to provide procedural due process to Dr. Kay invalidates the action of the Board taken on October 13, 1977, suspending Dr. Kay's license. This action having been invalid, Dr. Kay is not guilty of practicing without a license as alleged in Count VI.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, the Hearing Officer recommends that the Board of Veterinary Medicine suspend the license of Dr. Leland Kay for one (1) year, and further, the Hearing Officer recommends that the Board suspend nine months of the suspension on the condition that Dr. Kay obtain therapy as recommended during the one (1) year period; and that Dr. Kay engage in no conduct that reflects adversely upon the profession of veterinarian medicine; that Dr. Kay not drink to the extent that his ability to perform his professional obligations and duties is impaired; that Dr. Kay take no prescription medications except those prescribed by his physician; that Dr. Kay not drink any alcoholic beverages on the premises of his office, that Dr.

Kay not drink any alcoholic beverages during or immediately preceding his regular office hours, that Dr. Kay submit to any examinations and tests the Board requests; and that Dr. Kay permit his treating physician and other health care professionals to render reports to the Board of Veterinary Medicine.

DONE and ORDERED this 4th day of May, 1978, in Tallahassee, Florida.

STEPHEN F. DEAN

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 4th day of May, 1978.

COPIES FURNISHED:

Robert A. Pierce, Esquire Suite 201, Ellis Building 13011 Executive Center Drive Tallahassee, Florida

Melvin R. Horne, Esquire 800 Barnett Bank Building Post Office Drawer 1140 Tallahassee, Florida

Docket for Case No: 77-001841

Orders for Case No: 77-001841