vs. ) CASE NO. 79-748
PATRICK J. WRIGHT, D.V.M., )
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on 21 May 1980 at Jacksonville, Florida.
For Petitioner: Bert J. Harris, III, Esquire
For Respondent: Barry L. Zisser, Esquire
By First Amended Administrative Complaint dated 3 May 1979, the Florida Board of Veterinary Medicine, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Patrick J. Wright, Respondent, as a doctor of veterinary medicine. As grounds therefor it is alleged that Respondent administered vaccinations to pets without owners' authorization, gave vaccinations at times when animals were sick, allowed employees to give inaccurate information respecting Florida law requiring vaccinations, recommended to clients that animals be given inoculations for diseases not subject to immunization, sold products to pet owners without their request, overmedicated animals, issued a health certificate on an unhealthy animal, and overcharged for services rendered. These acts are alleged to constitute gross malpractice, conduct reflecting unfavorably upon the profession of veterinary medicine, and fraud and deception in the practice of veterinary medicine.
Depositions of two absent witnesses who took pets to Respondent were presented as Exhibits 1 and 2, two live witnesses who took pets to Respondent, and four expert witnesses were called by Petitioner, three witnesses, including Respondent and one expert, were called by Respondent and 11 exhibits were admitted into evidence.
Proposed findings submitted by Respondent not included herein were not supported by competent and substantial evidence or were deemed immaterial to the results reached.
Patrick J. Wright, Respondent, as at all times here relevant, licensed as a doctor of veterinary medicine by the Florida Board of Veterinary Medicine, Petitioner.
In April, 1978 Mrs. Gertrude Cole took her cat to Respondent's animal hospital because the cat appeared listless and was not eating. Prior to presenting the cat, Mrs. Cole called the clinic to inquire about the price of an examination and was advised it was $7. Upon Mrs. Cole's arrival at the clinic with the cat, she described the cat's symptoms to the receptionist, who inquired if the cat's shots were up- to-date. When the cat was taken into the operatory Respondent came in with several needles and proceeded to give the cat four injections in the neck. He then inquired about the cat, took the cat's temperature, took a blood sample, announced the cat was anemic, and gave the cat another shot. This latter shot was an antibiotic. Mrs. Cole did not request the cat be given the annual shots for rabies, distemper, etc.
Respondent's version of Mrs. Cole's visit is that Mrs. Cole only wanted her cat vaccinated and after he gave the four vaccinations he inquired about the condition of the animal and was told the cat was listless and not eating. He then examined the animal, saw it had fleas, gave it an antibiotic, and took a blood sample, which test revealed the cat had hemobartonella.
When Mrs. Cole said she had other cats at home, Respondent told her she should bring them in for vaccinations because of the hemobartonella of the cat he had just examined.
Respondent also told Mrs. Cole that the cat needed intravenous feeding, that the cat's chance for survival was 50-50 and that the cat should be left at the animal hospital for treatment. When Mrs. Cole returned home she called to inquire how the cat was doing and was told the cat was on intravenous feeding and that she should bring her other pets in for shots.
Mrs. Cole returned to the clinic, inquired about the cost of the treatment that was being given her cat, but was unable to get a satisfactory answer.
The same afternoon Mrs. Cole had the cat put to sleep.
She was presented with a bill for $97.00, which included examination fee, $7; intravenous fluids, $15; injections, $7; blood test, $12; immunization (rabies, pneumonitis, rhinotracheitis arid distemper), $32; medicated bath and dip, $8, and euthanasia, $16.
Mrs. Jacueline Pate testified she was in the waiting room when Mrs. Cole came in and that she heard Mrs. Cole say that she only wanted the cat vaccinated and didn't want anything else done. Not only is this testimony in conflict with Mrs. Cole's testimony, but also it is at variance with the bill submitted to Mrs. Cole by Respondent, which included $7 for an examination.
On 6 June 1978, Stanley Locke took his dog, a cock-a-poo, to Respondent for a rabies shot, dipping and a health certificate. When he left the dog at the animal hospital for this treatment, the dog appeared all right and Locke was advised the cost for rabies shot and dip would be $16. When Locke returned several hours later to pick up the dog, he received a bill of $66, which he paid. This bill included health certificate, $10; injections, $7;
blood test, $12; immunizations (rabies, booster DLH, and parainfluenza) $22; bath and dip, $8; antibiotic capsules, $4, and tablets, $3. At this time the dog appeared well but Respondent, or his receptionist, told Locke the dog had thrown up and had received treatment.
A few days later, the dog showed signs of illness, and on 12 June 1978, Locke took the dog to Dr. Widdeowson. He did not go back to Respondent because the bill from Respondent had been much higher than he had been led to expect. Locke testified the dog became lame the following morning. However, Dr. Widdeoson's records show that he saw Locke's dog June 12 and 13, six days after Respondent treated the cock-a-poo.
Respondent recalled treating Locke's dog, which he described as a nervous, excitable pet who vomited a little grass when he came in the hospital. He administered antibiotics to the dog because it had a temperature of 102 degrees F. but looked fine. The blood sample was taken to issue the certificate of health. Following the bath and dip, the dog had a loose bowel movement so Respondent treated the dog for diarrhea after his receptionist was unable to contact Locke.
Respondent and Respondent's expert witness both testified that the normal temperature of a dog is 100.5 degrees F. to 102.5 degrees F., and the same is true of cats. This testimony was not disputed.
Similarly, Respondent's expert witness's testimony that diarrhea or vomiting could be caused by diet or excitement was not contradicted.
On July 7, 1978, Gail Echols took her cat to Dr. Wright for emergency treatment around 10:00 p.m. Mrs. Echols's cat was obviously ill and she thought her cat had a recurring kidney malfunction. Wright's examination revealed the cat had low body temperature (hyperthermia) and was comatose.
Wright's policy is to vaccinate all animals which remain in his hospital unless very ill. On the evening of 7 July, Mrs. Echols's cat was too sick to be vaccinated and Mrs. Echols requested the cat not be vaccinatsed.
Mrs. Echols was told State law required vaccination of animals left overnight in a hospital. When she questioned this, she was told it was the hospital policy to vaccinate animals left overnight in the hospital.
When Wright returned to the hospital the morning of 8 July, Mrs. Echols's cat was walking around and Respondent vaccinated the cat. Approximately one hour later the cat died.
The bill presented to Mrs. Echols, which she paid, was $88. Thirty- two dollars of this total was for vaccinations. After Mrs. Echols complained about the bill, $32 was refunded to her.
The disparity between Mrs. Echols's testimony and Dr. Wright's testimony regarding the time the vaccinations were given to the cat is not material. Mrs. Echols testified the shots were given over her protest the night the cat was taken to Wright and that when she called the following morning to inquire about the cat's condition she was told Wright had not yet come in and the cat was dead. Respondent's testimony was that he remained at the hospital until 2:00 a.m. and vaccinated the cat when he returned the following morning.
On August 17, 1978, Susan Likens took her cat, "Misty", to Respondent to determine why the cat was scratching its ears. Upon examination, Wright told
Mrs. Likens her cat had ear mites and an infection. The cat's temperature was normal. Respondent also told her the cat needed its shots. Mrs. Likens first said she would get the vaccinations when the cat was well. However, she reluctantly gave Wright permission to vaccinate the cat. Upon leaving the hospital, Mrs. Likens was given some medication in a bag. When she got home she found the bag also contained shampoo and flea dip for her dog. The medication given for Misty caused the cat's ears to crack and bleed. A few days later, Mrs. Likens called Respondent's office to advise about the cat's ears. She was told by the receptionist she could come in and get antibiotics to put in the cat's ears. She stopped by and was given medication without further examination of the cat. Some two weeks later the cat died due to distemper. Respondent's version of the incident involving the Likens cat was not materially different from Mrs. Likens's version. His version of prescribing medication without an additional examination was that his receptionist told him Mrs. Likens called to say her dog had destroyed the medication given for the cat and he only refilled the prescription. No evidence was presented that the second medication prescribed was the same as or different from the ear antibiotics billed to Mrs. Likens on Exhibit 4.
The bill presented to Mrs. Likens for $61.50 included $32 for vaccinations (rabies, distemper, pneumonitis, and rhinotracheitis) and $9 for dog shampoo and dip. Neither of the latter two items had been requested by Mrs. Likens.
Hemobartonella is transmitted by sucking insects such as fleas and ticks. There is no vaccination for hemobartonella and it usually manifests itself in an animal when the animal has been weakened by another primary illness. Hemobartonella can be treated with antibiotics, steroids and vitamins.
The manufacturers of vaccines used for animal innoculation specify the vaccines be given to well animals. There are two reasons for this instruction. Primarily, the vaccine is likely to be ineffective if administered to an unhealthy animal. Secondarily, vaccinations, and particularly those manufactured from live viruses, place stress on the animal. If the animal is already weakened by illness, the additional stress caused by vaccination usually outweighs the potential benefit of the vaccination.
Pneumonitis is an infection animals get which was described as similar in severity to the common cold in humans. Vaccination for pneumonitis was not favored by the majority of veterinarians in 1978 and is unlikely to be effective on ill animals.
When questioned by a member of the Ethics Committee of the local veterinary association regarding complaints received about charges rendered for his services, Respondent replied that he expected such complaints to continue and as long as he had their money in his pocket he didn't care.
Respondent has a reputation among his peers of overtreating animals, thereby increasing the cost to the client. One witness described this as performing unnecessary work to the point of being detrimental to the animal such as vaccinating an animal which is about to die from some other illness.
Although one expert witness called by Respondent testified that vaccinations administered to ill animals won't hurt the animal, even he admitted such shots were unlikely to produce the immunization intended. The credible evidence in this regard is that immunizations should not be administered to unhealthy animals, that elective vaccinations should be administered only after
the animal has been examined, and no vaccination should be administered without the owner's consent and concurrence.
When issuing a health certificate, the veterinarian certifies the animal to be free from infection or communicable diseases and free from rabies.
The number and quality of witnesses compels a finding that Respondent was sufficiently interested in vaccinating animals that his receptionist actively solicited such vaccinations; and Respondent was aware, or should have been, that inaccurate and incorrect information regarding vaccinations and the law was given out by has receptionist.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Florida Statutes (1977) were effective at the time of the allegations here involved and the violations alleged to have been committed by Respondent are of Sections 474.31(4)(6)(11)(12) and (13). But for subsection (6) these violations involve fraud or deception in the practice of veterinary medicine, gross malpractice, unprofessional or unethical conduct, and conduct reflecting unfavorably on the profession of veterinary medicine. Subsection (6) involves fraudulently issuing a health certificate.
Counts I through IV involve the circumstances surrounding and treatment given to Mrs. Cole's cat and allege violations of Sections 474.31(4)(11)(12) and (13). From the facts noted above it is concluded that Respondent was guilty of unprofessional conduct, conduct reflecting unfavorably on the veterinary profession, fraud, and malpractice in allowing, if not encouraging, his employees to advise Mrs. Cole that vaccinations were required by law, in vaccinating her cat before examining it, and in administering vaccinations to a sick animal.
While Mrs. Cole understood, from what she was told by Respondent and/or his receptionist, that other pets should be vaccinated against hemobartonella, the evidence will not support a finding that Respondent specifically recommended vaccinations for hemobartonella. Respondent told Mrs. Cole that her other animals, which were all overdo for vaccinations, should be brought in to be vaccinated. Simply giving this information close to the time Mrs. Cole was advised that her cat had hemobartonella is not sufficient to sustain a finding that Respondent intended Mrs. Cole to believe her other pets should be vaccinated against hemobartonella. Accordingly, Respondent is found guilty of Counts I, II and IV and not guilty of Count III involving fraudulent representations that Mrs. Cole's other pets should be vaccinated against hemobartonella.
Count V involves the circumstances surrounding the treatment of Mrs. Echols's cat and alleges unethical or unpro-fessional conduct and conduct reflecting unfavorably upon the profession. From the findings of fact above noted, it is concluded that Mrs. Echols was told the law required animals remaining overnight in the hospital to be vaccinated. This is false and was known by Respondent and his employees to be false. Innoculating a comatose animal suffering from hyperthermia also constitutes unethical or unprofessional conduct. Accepting the Respondent`s version of the vaccinations, that they were given the following morning, it is inconceivable that a cat which was obviously ill and comatose after 10:00 p.m. could be alert and appear well at 8:00 or 9:00
a.m. the following morning and dead one hour later without any intervening force. Accordingly, Respondent is found guilty of Count V.
Counts VI and VII involve treatment of a Mrs. Wittler's puppy. No evidence was presented on this incident. Accordingly, Respondent must be found not guilty of Counts VI and VII.
Counts VIII alleging gross malpractice and conduct reflecting unfavorably on the veterinary profession involves the diagnosis and treatment of Mrs. Likens's cat. Among the factual allegations made are that Respondent prescribed additional medication for the cat without examination, that he innoculated a sick and febrile animal and sold products to Mrs. Likens without her request for same or knowledge she was to pay for said products. With respect to the allegation of innoculating sick and febrile animals, the evidence presented does not show the cat was febrile. To the contrary, its temperature was normal. The slight infection associated with the ear mites was not such as to make the innoculation ineffective. The fact that the cat died from distemper
12 days later does not establish that it was improper to give that animal a distemper innoculation.
The evidence does support the charge that Respondent (or his receptionist) sold Mrs. Likens dog shampoo and dip which she didn't request and that Respondent induced Mrs. Likens to have her cat innoculated when she was predisposed not to do so. This corroborates the conclusion that Respondent "sold" innoculations to all he could.
Count IX alleges Respondent committed unprofessional or unethical conduct in Finding of Fact No. 26 above. The allegation that Respondent made those certain statements, even though true, does not constitute conduct proscribed by Section 474.31(12), Florida Statutes. A statement to another veterinarian that Respondent didn't care about complaints regarding overcharges and that such complaints would probably continue is evidence Respondent was likely to overmedicate animals and corroborates the testimony that he did overmedicate the animals owned by the complaining witnesses. However, the statement does not constitute unprofessional conduct but only a propensity to unprofessional conduct. Respondent must there- fore be found not guilty of Count IX.
Count X alleges Respondent issued a health certificate on an animal he examined and knew was not healthy and that this constitutes a violation of Section 474.31(6), Florida Statutes. The evidence submitted will not support this charge. When the cock-a-poo was taken to Respondent by Stanley Locke the animal appeared healthy. Although Respondent gave vaccinations and other medication while at the hospital that Locke did not ask for when he took the dog for the health certificate, this is not the offense alleged. The dog appeared healthy when picked up by Locke three or four hours after he left the dog. It was a few days later when the animal appeared ill and six days after Respondent had seen the dog before the dog was taken to another veterinarian who, upon examination, found the dog to have a temperature of 103 degrees F., soreness in the kidney area, and weakness in the rear limbs. No evidence was presented that this condition existed or should have been detected six days earlier when the dog was seen by Respondent. Accordingly, Respondent must be found not guilty of this charge.
Entered this 1st day of July, 1980.
K. N. AYERS Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1980.
Bert J. Harris, III, Esquire Post Office Box 10369 Tallahassee, Florida 32302
Barry L. Zisser, Esquire
