STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF VETERINARY ) MEDICINE, )
)
Petitioner, )
)
vs. ) CASE NO. 89-2464
)
DR. SAMY H. HELMY, )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in Lecanto, Florida on September 28, 1989, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Laura P. Gaffney, Senior Attorney
Department of Professional Regulation 1940 North Monroe Street
Tallahassee, Florida 32399-0792
For Respondent: William Lackay, Esquire
Post Office Box 279 Bushnell, Florida 33513
STATEMENT OF THE ISSUES
The issue for consideration is whether Respondent's license as a Doctor of Veterinary Medicine in Florida should be disciplined because of the misconduct alleged in the Administrative Complaint filed herein.
PRELIMINARY STATEMENT
On March 23, 1989, Charles F. Tunnicliff, on behalf of Larry Gonzales, Secretary of the Department of Professional Regulation, filed an Administrative Complaint in this case which, in six Counts, alleged Respondent was guilty of fraud, negligence, incompetence or misconduct in the practice of veterinary medicine; made false records; failed to properly maintain medical records; violated a statute or rule regulating the practice of veterinary medicine or a disciplinary order of the Board; failed to provide copies of reports or x-rays upon proper request; and committed fraud in the collection of fees, all in violation of various provisions of Chapter 474, Florida Statutes.
On April 14, 1989, the Respondent requested a formal hearing on the allegations, and on May 4, 1989, the file was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. Thereafter, on
May 8, 1989, the Petitioner filed an Amended Administrative Complaint and on May 23, 1989, the Respondent filed a Motion to Dismiss the Amended Administrative Complaint. Several other motions were filed by the Respondent. The Respondent requested a hearing on the Motion to Dismiss the Amended Complaint. By Order dated June 15, 1989, Larry J. Sartin, H. O., denied all motions and by Notice of Hearing dated June 19, 1989, set the case for hearing in Inverness on September 28, 1989. The place of hearing was changed to Lecanto, Florida by Amended Notice of September 12, 1989, and the hearing was held as scheduled.
At the hearing, Petitioner presented the testimony of James W. Reese, an investigator with the Department of Professional Regulation; Bonnie K. Judd, owner of the animal in issue; Dr. Robert B. Parker, Associate Professor of surgery at the University of Florida School of Veterinary Medicine and an expert in veterinary medicine; Dr. Klaus Burgerlt, a veterinarian specializing in veterinary pathology and an expert in that field; Clifford M. Travis, an attorney; Dr. Charles D. MacGill, a veterinarian practicing in Crystal River and an expert in the field; and Dr. Jerry A. Greene, a veterinarian in Tampa and expert in the field. Petitioner also introduced Petitioner's Exhibits 1 through 11.
Respondent testified in his own behalf and presented the testimony of his wife, Madia Helmy. He also introduced Respondent's Exhibits A through H.
A transcript of the proceedings was provided and subsequent to the hearing, both parties submitted Proposed Findings Of Fact which have been ruled upon in the Appendix to this Recommended Order.
Prior to the taking of testimony on the issues, a hearing was held on Respondent's Motion to Determine the Existence of X-rays and To Impose Sanctions against Petitioner. At this hearing, Respondent testified in support of his motion and the Department's investigator testified in opposition thereto.
Having heard testimony on the motion and having examined all documentary evidence pertinent thereto, and weighing the credibility of the witnesses, the undersigned concluded that only one x-ray was submitted by the Respondent to the Department's investigator, and the Respondent's Motion for Sanctions was denied.
FINDINGS OF FACT
At all times pertinent to the allegations herein, the Respondent was a licensed veterinarian in Florida practicing under license number VM 2884, and the Board of Veterinary Medicine was and is the state agency charged with the responsibility of regulating the practice of veterinary medicine in this state.
On July 22, 1988, Bonnie Judd, owner of a golden retriever puppy, "Einstein", accidentally backed over the animal with her automobile injuring it badly. She immediately took the puppy which was, at the time, approximately 4 or 5 months old, to the Respondent for treatment. Respondent examined the dog and informed Ms. Judd that the animal's leg was broken and that surgery would be required to repair it. He did not then indicate any other injuries and at no time did he suggest taking the animal to the university hospital for evaluation. He advised her to leave the animal with him and had her sign certain documents including an informed consent form which indicated that Respondent was to fix a "broken tibia only." Ms. Judd contends that that notation was not on the form when she signed it and it is so found. He did not then suggest putting the dog to sleep, either.
At approximately 4:30 that same afternoon, Respondent called Ms. Judd and told her she should pick the animal up because no one would be at the clinic all weekend. When she arrived at Respondent's facility, he informed her that the dog had also been dipped for fleas, his shots had been updated, and a pin had been placed in the left rear leg. Respondent estimated the prognosis for healing of the broken tibia would be between 4 and 6 weeks. At this time Ms. Judd paid the Respondent his fee of $350.00, $200.00 of which was by post dated check, and an additional $15.00 for medications. At that point, Respondent's wife updated Einstein's vaccination records to reflect the shots which had been given.
During the period between July 22, 1988 and August 16, 1988, Ms. Judd returned Einstein to the Respondent for treatment approximately one or two times a week. Toward the end of that period, Respondent, for the first time, informed Ms. Judd that Einstein's injuries were far more extensive than merely a broken leg. During these follow up visits, however, the Respondent would check the broken tibia and its wound, changing the bandage, administering antibiotics, and changing the cast. On most of these visits, Respondent reported to Ms. Judd that the leg was healing and the animal's condition was satisfactory.
Respondent claims that at the very beginning, he told Ms. Judd of the animal's other injuries and that it should be taken to the university's veterinary hospital for evaluation and possible euthanasia. The copies of his records, provided as evidence, reflect notations of other injuries and support his claims, but they are photo copies of the actual documents and cannot be properly examined for authenticity. However, the evidence shows that Respondent treated the animal for the broken tibia for several weeks after the initial visit, notwithstanding, he claims, she only wanted the animal treated and kept alive long enough for her husband to come home and make the decision. This would seem to indicate the treatment for the tibia was the chosen treatment and not merely a stop-gap. Further, Ms. Judd claims that it was only when she decided to seek another opinion that Respondent mentioned the other injuries.
This is a question of whom to believe - Ms. Judd, who admits to having lied to her husband about what happened to another dog she accidentally killed, or Respondent, who, it appears, denies any impropriety though evidence to the contrary indicates otherwise. On balance, it is found that Respondent did not advise Ms. Judd of any additional injuries until late in the course of treatment and neither recommended hospitalization nor consideration of euthanasia early on.
Also during this period, he provided Ms. Judd with antibiotics and tranquilizers to administer to Einstein but the medications were improperly packaged and labeled. They did not contain the necessary information relating to drug name, drug strength, quantity, or directions for use and they were not in child proof containers. According to a departmental expert witness, this was below professional standards and it is so found.
As previously found, during the last or next to last visit, Dr. Helmy informed Ms. Judd that the animal also had a broken pelvis but that that injury should not be dealt with until the broken leg was healed. He indicated that when appropriate, the pelvis could be corrected by further surgery. Subsequent to her last visit, on August 16, 1988, Ms. Judd received a bill for an additional $350.00 for the periodic follow-up visits mentioned.
Ms. Judd, seeking another opinion, took Einstein to the office of Dr. Charles MacGill in Crystal River on August 17, 1988. At Dr. MacGill's advice,
she requested the animal's medical records and all x-rays from Dr. Helmy which he refused to provide. He indicated that the only X-rays he had taken were those made after surgery, which had never been developed. He also indicated he did not need to take prior x-rays because he was able to assess the animal's injuries with his hands. There is some question as to the propriety of inserting a pin into the dog's tibia to reduce a closed fracture without the use of an x-ray, and while the experts consulted indicated it can be done, it is not good practice and is below professional standards. It is so found.
During his examination, Dr. MacGill noted that Einstein could not walk. His back leg muscles had atrophied and there was a suppurating hole showing gross infection in the left rear tibia. A rectal examination confirmed Dr. Helmy's diagnosis of a broken pelvis.
After taking several x-rays of the animal, Dr. MacGill advised Ms. Judd that in addition to the broken tibia and fractured pelvis, the distal femur was broken; the tibial fracture had not properly healed and showed signs of osteomyelitis; and there was a fracture of the fifth lumbar vertebra which was exerting pressure on the spinal cord. Dr. MacGill prescribed several antibiotics for the animal and, because of the spinal fracture, advised Ms. Judd she should take Einstein to the University of Florida School of Veterinary Medicine for evaluation. Ms. Judd readily agreed.
Ms. Judd took Einstein to the university hospital on August 22, 1988 and left him there for an assessment of the damage. At the same time, she signed a consent form authorizing euthanasia in the event the opinion of the physicians was that the dog's nerve damage was too extensive for him to survive. Thereafter, she was advised that the nerve damage incurred was irreversible and extensive, and the animal was put to sleep.
Examination of the animal at the hospital indicated he was unable to stand on his rear legs; he had neurological deficits in the right rear leg; evidenced pain on palpation of the left shin; and had a grinding in the hip joints. The left rear tibia showed an open, infected wound, and a rectal examination confirmed the pelvic fracture. X-rays taken at the hospital during this examination revealed that the only fracture which had been treated was the fracture of the tibia. This x-ray also confirmed the existence of osteomyelitis in that wound.
In the opinion of Dr. Robert Parker, associate professor of surgery at the school, and the individual who saw Einstein there as attending surgeon, the technique of pin placement utilized by Dr. Helmy in reducing the fracture to the tibia was adequate, but Dr. Parker was concerned that the fracture was not stable. He concluded as well that the contamination of the wound, either at the time of fracture or at the time of surgery, could not be controlled due to the instability and poor drainage of the fracture site. Dr. Parker formed no opinion as to the Respondent's compliance with the community standards. He pointed out that he saw the dog four weeks after injury and was concerned at that time that only one of several fractures had been repaired. The one repaired by Dr. Helmy was the least serious and, in Parker's opinion, the others should have been treated first. He does not know why they were not treated but opined they should have been treated as soon as possible after they were incurred, if the condition of the animal permitted.
Referring to the tibia fracture reduction, however, while minimally acceptable, it was not done in the manner that he, Dr. Parker, would have utilized. He felt that the femur fracture should have been treated first and
also that the use of a splint in the case of an open wound, as here, contributes to the high risk of infection. This is what happened.
Had the dog been brought to the hospital initially, a team would have seen it. Normally, a single practitioner cannot render the same type of treatment because of a lack of experience or equipment, but the appropriate thing for Respondent to have done would have been to stabilize the animal and refer it to a hospital or a team treatment facility. He did not do this. Here, in Parker's opinion, Respondent's repair of the tibia was not the appropriate first thing to do. Had the tibia not been treated, it is probable the infection would not have occurred. The initial fracture was not an open fracture but a closed fracture, and infection was given access by the procedure utilized by Respondent in opening the wound for the insertion of the pin. In Dr. Parker's opinion, the tibia could have been stabilized without a pin so that the animal could be transferred to a team treatment facility. The test, however, is not whether Respondent's treatment met optimum criteria. Here, the failure to refer to a team facility was not actionable error. Any error, if established, must relate to the Respondent's choice of procedures and his performance of them.
While each of the injuries alone was not fatal, taken together they were ovehelming and euthanasia would have been a viable option from the very beginning. The neurological problems could have been repaired over a long period, but Dr. Parker would not normally wait for that to decide to do something regarding the fracture. Since the tibia was the fracture of lowest priority, in Parker's opinion, Respondent cannot legitimately claim he did this while waiting for neurological resolution. In this case, since he did not see the x-rays taken early on, Dr. Parker cannot say if Respondent's use of a pin was proper or not. Normally, however, a splint, as used by Respondent, is not used with a pin insertion. If there is an opening of the body, as here, it should not be combined with external stabilization which can introduce infection.
While the hip joint fracture had healed by the time Parker saw the animal, there are indications that the healing was imperfect and additional arthritis would probably have set in, requiring further surgery. In this case, the untreated fractures were very bad and should have been treated surgically right away or the animal should have been put to sleep. Even if all had been done properly, however, the dog probably, in the opinion of Dr. Parker, would have had nerve damage and the prognosis for recovery was guarded.
According to Dr. MacGill, who examined Respondent's records regarding his treatment of Einstein, Respondent administered several drugs for the dog. Two of these, the antibiotic and the tranquilizer appear appropriate, but the third, Prednisone, is a cortisone derivative which is not indicated or appropriate when infection is present. Whereas Dr. Parker was unwilling to state an opinion as to whether Respondent's treatment of Einstein met minimum standards, Dr. MacGill is not at all reluctant. In his opinion, were he to have treated the animal himself initially, he would have put a bone plate on the femur, done minimal repair with regard to the pelvis, stabilized the back to relieve pressure on the vertebrae, and treated the tibia. Accomplishment of all these is required to meet minimum standards, in his opinion, and Respondent's treatment did not, he believes, meet these standards. It is so found.
After the dog was put to sleep, Ms. Judd consulted an attorney, Mr. Travis, who attempted to obtain Einstein's medical records from Respondent. Respondent was not cooperative and declined to furnish them initially though he ultimately did so.
Dr. Greene, an expert in veterinary medicine practicing in Tampa, reviewed this case through an examination of the records maintained by all parties and heard the testimony at the hearing. In his opinion, the care rendered by Dr. Helmy constituted negligence from the point that Einstein was operated on. While there is some indication that x-rays may have been taken, showing multiple fractures, surgery under a "questionable anesthetic", one which quiets the dog but does not put him out, when the surgery is not going to serve a valid purpose, along with the use of cortisone, with its resultant reduction of the body's ability to fight infection, after surgery, all constitute inappropriate conduct.
Some of the medications prescribed by Respondent were contraindicated for the purpose used here. Inovar, used as an anesthetic during reduction of the tibia fracture, was inappropriate. Enough ampicillin was given for only five days. Prednisone, (cortisone), reduced the animal's ability to fight infection. The anterobe is an antibiotic which would be good to fight infection if prescribed in the appropriate amount which it was not, here. In light of the osteomyelitis, which was more than a mere infection, the amount prescribed was totally insufficient. It should be noted, however, that Ms. Judd did not administer all the medications given by Dr. Helmy. Had she done so, the infection may not have come about or been so severe.
In total, Dr. Greene does not believe Respondent acted properly here. Helmy did not asses the other injuries and should not have operated on the tibia as the sole action taken. The other injuries were more serious and were neither treated nor addressed. Further, his review of the records maintained by Dr. Helmy regarding this animal shows they omit any reference to replacing sutures which the dog took out and they omit any mention of a treatment plan. The notes do not show any injuries other than the broken tibia and do not mention the femur, the vertebrae, the pelvis or any other injuries. All medical records should identify and assess all conditions regardless of whether they are treated or not. They cannot be ignored. As was mentioned previously, however, the note of 7/22/88 in Respondent's records as to Einstein does refer to a broken femur shaft and problems with the pelvis, in addition to the tibia fracture.
Taken together, the Respondent's treatment constitutes neglect and did not meet minimum standards for the practice of veterinary medicine in Florida.
By a Final Order dated July 4, 1987, the Board of Veterinary Medicine found Respondent guilty of violating Chapter 474, Florida Statutes, and, inter alia, placed him on probation from August 4, 1987 to August 3, 1991. The Order also provided that if, during the period of probation, the Respondent is found guilty in a Final Order of the Board of violating any provision of Chapter 474, his license would automatically be suspended.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
In its Administrative Complaint, Petitioner has alleged the Respondent is guilty of: fraud, deceit, negligence incompetence or misconduct in the practice of veterinary medicine, (Count I); filing a false report, (Count II); failing to maintain adequate medical records, (Count III); violating a statute, rule, or Order of the Board, (Count IV); failing to provide copies of patient
records upon proper request, (Count V) and committing fraud in the collection of fees, (Count VI), all in violation of various subsections of Chapter 474, Florida Statutes.
In order to prevail herein, Petitioner must present clear and convincing evidence of all elements of each allegation made. Ferris v. Turlington, 510 So.2d 292, 295 (Fla. 1987).
At the close of Petitioner's case, it withdrew and voluntarily dismissed it's allegations as contained in Count II of the Administrative Complaint and no further comment will be made regarding it. Further, a complete analysis of the evidence presented by Petitioner, as rebutted by Respondent, also indicates that there is insufficient evidence of record to establish that Respondent failed to furnish copies of patient records upon request, (Count V), or that he is guilty of fraud in the collection of fees, (Count VI). The testimony of Mr. Reese and Mr. Travis, regarding the records indicates that Respondent may have been slow in providing records, but that he did ultimately provide what he had. As to fee fraud, the evidence upon which Petitioner apparently relies on to support this charge relates more to the issue of negligence or incompetence than to the issue of fraud Consequently, the discussion herein as to the Respondent's guilt of the allegations against him will relate solely to Counts I, III, and IV.
The discrepancy in the testimony of the parties, Dr. Helmy and Ms. Judd, has been resolved in favor of Ms. Judd. It was found that not until several weeks after Ms. Judd brought Einstein to him did Dr. Helmy indicate any other injuries than the broken tibia or suggest that the animal be taken to the university veterinary hospital. Instead, he proceeded to treat the animal for the broken tibia, the least serious injury, without the use of x-rays, disregarding those injuries which, in the opinion of the experts, should have been treated first, and continued to neglect them for an extended period. Further, though his actual pin insertion was not found to be poorly done, the follow-up activity by the Respondent in placing the open wound in a cast and prescribing a cortisone drug which diminished the animal's ability to fight infection, was improper. Taken together, these actions by the Respondent constituted negligence and a violation of Section 474.214(1)(o), Florida Statutes, as alleged in Count I.
The violation of this statutory provision also constitutes a violation of Section 474.214(1)(f), as alleged in Count IV.
The testimony of Dr. Greene and Dr. Parker, taken together, establishes that the records as maintained by Dr. Helmy were insufficient to meet the test as established in Rule 21X-18.002, F.A.C. and this constitutes a violation of Count III. It is irrelevant that Dr. MacGill may have failed to make an appropriate entry in his records as well.
Petitioner has failed to cite the disciplinary guidelines of the Board of Veterinary Medicine as found in Rule 21X-30.001, F.A.C. However, the offenses of which Respondent has herein been found guilty each and individually call for at least suspension of the license to practice and allow, in appropriate cases, revocation. At subsection (3) of the Rule, it is specifically provided that matters in mitigation and aggravation may be considered.
Here Respondent has been found guilty of negligence in the practice of veterinary medicine and this is the second time in less than three years this
has happened. It is clear Respondent has substantial difficulty in conforming to the reasonable standards imposed for the practice of veterinary medicine in this state. He may well possess the requisite skills to successfully practice, however, and should not be forever precluded from doing so.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that the Respondent's license to practice veterinary medicine in Florida be suspended for a period of two years and that thereafter he be placed on probation for an additional period of two years under such conditions as are prescribed by the Board of Veterinary Medicine, and that he pay an administrative fine of $1,500.00.
RECOMMENDED this 12th day of January, 1990, in Tallahassee, Florida.
ARNOLD H. POLLOCK
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 12th day of January, 1990.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2464
The following constitutes my specific rulings pursuant to S. 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
FOR THE PETITIONER:
Accepted and incorporated herein.
& 3. Accepted and incorporated herein.
4. - 6. Accepted and incorporated herein.
7. & 8. Accepted and incorporated herein.
9. - 11. Accepted and incorporated herein.
12. - 13. Accepted and incorporated herein.
Accepted and incorporated herein.
& 16. Accepted.
Accepted and incorporated herein as a finding, not as "it appears."
Accepted and incorporated herein.
Not a Finding of Fact but a recitation of testimony.
FOR THE RESPONDENT:
Accepted and incorporated herein.
Accepted and incorporated herein.
Accepted and incorporated herein except for the conclusion as to what Respondent found and what he told Ms. Judd.
Accepted and incorporated herein.
Accepted and incorporated herein.
Accepted and incorporated herein.
Rejected as contra to the evidence.
& 9. Rejected as contra to the evidence.
10. & 11. Accepted and incorporated herein.
12. & 13. Rejected as contra to the evidence.
14. & 15. Accepted and incorporated herein.
Accepted as to what Respondent did but rejected as to his reasons for failing to treat the other injuries.
Rejected. There was no discussion about taking the animal to the University or other veterinarian.
& 19. Accepted and incorporated herein.
20. - 22. Accepted and incorporated herein.
Accepted.
Rejected.
& 26. Accepted.
27. - 34. Accepted and incorporated herein.
35. - 39. Accepted and incorporated herein.
Rejected.
& 42. Accepted and incorporated herein except for the last sentence in paragraph 42 which is rejected.
Accepted.
- 47. Accepted and incorporated herein.
Accepted and incorporated herein.
Not a Finding of Fact but a comment on the testimony.
Not a Finding of Fact but a comment on the testimony.
Last sentence rejected. Balance merely a recitation of testimony.
Merely a comment on the testimony.
Accepted.
Accept.
Rejected.
& 57. Rejected.
Accepted.
Rejected as merely comment on testimony.
Rejected as contra to the evidence.
1st and second sentences accepted. 3rd sentence rejected 4th through 6th sentences rejected. Balance rejected.
1st sentence accepted. 2nd sentence accepted but only after the tibia was set. Third sentence accepted.
Accepted.
COPIES FURNISHED:
Laura P. Gaffney Senior Attorney
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
William E. Lackay, Esquire Post Office Box 279
Of Flotifs Building Highway 31 North Bushnell, Florida 33513
Kenneth E. Easley General Counsel
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
Linda Biedermann Executive Director
Board of Veterinary Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF VETERINARY MEDICINE
DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF VETERINARY MEDICINE,
Petitioner,
vs. DOAH CASE NO.: 89-2464
DPR CASE NO.: 0105099
SAMY H. HELMY, D.V.M.
Respondent.
/
FINAL ORDER
This matter came before the Board of Veterinary Medicine (hereinafter referred to as the "Board") for final action pursuant to Section 120.57(1)(b)9, Florida Statutes, at public hearing held on May 23, 1990, in Orlando, Florida, for consideration of the Recommended Order of the Hearing Officer entered herein.
Doctor Burch and Mrs. Lewis were recused from participating in this case due to their prior participation on the probable cause panel.
Each member of the Board (other than those recused) confirmed on the record that he or she had received and examined the entire record of this case as delineated by Section 120.57(1), Florida Statutes.
The Board then considered Respondent's Motion for Rehearing of Motion for Rehearing, Motion to Dismiss, and Motion to Set Aside Denials of Exceptions of Fact. More specifically, despondent requested rehearing of the Board's previous denial of the opportunity for the Respondent to present newly discovered evidence, denial of Motion to Dismiss and rehearing on the previous denials of Respondent's first four (4) exceptions. The Board granted this motion.
The Board reconsidered and denied Respondent the opportunity to present new evidence in a rehearing for the reason that with due diligence the proffered newly discovered evidence could have been discovered and presented at the previous formal hearing of this cause, and because, if it had been presented, in the opinion of the Board, it would not have changed the resulting Conclusions of Law or recommendation of the Hearing Officer.
The Board reconsidered those exceptions to Findings of Fact (1-4) ruled on at the previous Board meeting on March 20, 1990 for reasons that the Board now had the complete record before it. The Board then reconsidered and ruled on each of Respondent's Exceptions 1-4 as follows:
Respondent's Exception to Findings of Fact number one (1) was denied for reason that no expert handwriting testimony was required at the formal hearing, and Respondent did not proffer such at said hearing.
Respondent's Exception to Finding of Fact number (2) was denied for reason that competent substantial evidence existed in the record to support said Finding of Fact.
Respondent's Exception to Finding of Fact number (3) was denied for reason that competent substantial evidence existed in the record to support said Finding of Fact.
Respondent's Exception to Finding of Fact number (4) was denied for reason that competent substantial evidence existed in the record to support said Finding of Fact.
On Respondent's Motion, the Board then reconsidered and ruled on the previous Motion to Dismiss filed with the Division of Administrative Hearings (see record of Division of Administrative Hearings case number 89-002464). The Motion for Dismissal as stated in paragraph one (1) of that Motion was denied by the Board for reason that case 86-2708 covered by the Board's Order of July 14, 1987 was a sufficient basis to allow that Order into evidence in this case. The Motion for Dismissal as stated in paragraphs two (2), three (3), and four (4) was denied as there was sufficient evidence to support the charges which were properly pled to give adequate notice to the Respondent. The Motion to Dismiss as stated in paragraph five (5) is rejected in that probable cause was found in accordance with law. Paragraph six (6) of the Motion to Dismiss was withdrawn by the Petitioner. The arguments and requests as stated in paragraphs seven (7), eight (8), nine (9) of the Motion to Dismiss are rejected in that the charges referred to were properly plead, giving adequate notice of the charges to the Respondent. The Petitioner stipulated to dismissal of Count VI of the Administrative Complaint and therefore the request of paragraph ten (10) of the Motion to Dismiss relating to that count was granted based on the evidence, rather than on the pleading.
The Board considered and denied Respondent's motion to release the original receipt for x-rays from the official record.
The Board considered and denied Respondent's objection to use of Dr.
Macgill's testimony in this case for reason that Respondent's objections were based on irrelevant matters and unverified allegations.
The Board then considered in order the remainder of the Respondent's Exceptions to the Hearing Officer's Findings of Fact and ruled on each as follows:
Exception five (5) denied for reason that there is competent substantial evidence in the record to support the referenced findings.
Exception six (6) denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception seven (7) denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception eight (8) denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception nine (9) for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception ten (10) denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception eleven (11) denied for reason that there is competent substantial evidence in the ,record to support the referenced finding, and there was no clearly stated exception.
Exception twelve (12) denied for reason that there is competent substantial evidence in the record to support the referenced finding and because the fracture of the femur should have been stabilized first (ice. before any stabilization of the tibia.)
Exception thirteen (13) denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception fourteen (14) is denied as it does not state an exception to Finding of Fact and there is competent substantial evidence that the fracture was not stabilized.
Exception fifteen (15) denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception sixteen (16) is denied as it is irrelevant.
Exception seventeen (17) denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception eighteen (18) is denied for reason that there is competent evidence in the record to support the referenced finding.
Exception nineteen (19) is denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception twenty (20) is denied for reason that there is competent substantial evidence in the-record to support the referenced finding.
Exception twenty-one is denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception twenty-two (22) is denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception twenty-three (23) is denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception twenty-four (24) is denied for reason that there is competent substantial evidence in the record to support the referenced finding.
Exception twenty-five (25) is denied for reason that there is competent substantial evidence in the record to support the referenced finding.
The Board considered and ruled on Respondent's Exceptions to the Hearing Officer's Conclusions of Law as follows:
Exception one (1) denied as previously ruled on by the Board in this order. Exception two (2) denied as previously ruled on by the Board in this order.
Exception three (3) denied as the Motion to Dismiss was previously considered by the Board at the meeting on May 23, 1990, and ruled on by the Board in this order.
Exception four (4) denied for reasons previously ruled on by the Board in this order in regards to the Motion to Dismiss.
Exception five (5) denied, as the previous order relating to cases numbers 86-2708 and 87-0525 covered two cases and could be admitted for limited purposes as it related to one case number 89-002708 which did not include a charge of impaired ability to practice.
Exception six (6) denied because no timely objection was made during hearing, and because Mr. Green was a designated representative of petitioner.
Exception seven (7) denied because there is competent substantial evidence to support the referenced conclusion and it is correct.
Exception eight (8) denied because there is competent substantial evidence to support the conclusion and it is correct.
Exception nine (9) is denied because legal burden of proof was met by clear and convincing, competent substantial evidence.
Exception ten (10) is denied because the charges are correct and supported by competent substantial evidence.
Exception eleven (11) is granted as the referenced prior violation was for misconduct, not negligence, and there is no competent substantial evidence in the record to the contrary.
Exception twelve (12) is denied as the charges are correct and supported by competent substantial evidence.
Exception thirteen (13) is denied as penalty assessed is within legal limits and is supported by the Conclusions of Law and competent substantial evidence supporting the applicable Findings of Fact.
The Board ruled as follows on Petitioner's Exceptions to the Hearing Officer's Recommended Order:
The Exception as stated in paragraph 2(a) is rejected as it is not based on competent substantial evidence.
Exception 2(b) to the Conclusions of Law is accepted as there is clear and convincing and competent substantial evidence that Respondent exhibited incompetence in the practice of veterinary medicine in violation of Section 474.214(1)(c), Florida Statutes, by pining the fractured tibia and not pining the fractured femur.
FINDINGS OF FACT
The Board adopted the Findings of Fact of the Recommended Order as the Findings of Fact in this Order.
CONCLUSION OF LAW
The Board adopted the Conclusions of Law in the Recommended Order as Conclusions of Law in this Order with the exception that the conclusion that this is the second time that Respondent has been found guilty of veterinary negligence in three years is stricken and that it is found that Respondent exhibited incompetence in the practice of veterinary medicine in this case in violation of Section 474.214(1)(o), Florida Statutes, by his pinning the fractured tibia of the animal treated and not pinning the fractured femur (see paragraphs 2, 3 and 8 of the Findings of Fact of the Recommended Order).
PENALTY
WHEREFORE it is Ordered that Respondent's license to practice veterinary medicine in Florida be suspended for a minimum period of two years with said period of suspension to continue until such time as the Respondent has taken and passed the veterinary Clinical Competency Test and thereafter Respondent shall be placed on probation for an additional period of two years under the conditions hereinafter stated, and that he pay an administrative fine to the Board of Veterinary Medicine of $1,500. This increase in penalty from that recommended by the Hearing Officer by addition of examination requirement to determine the length of suspension, is supported by the Conclusion of Law that the Respondent exhibited incompetence in the practice of veterinary medicine and by the Board's further review of the entire record in this case and finding that evidence on pages 162 413, 414, 415, 419, 394, and 395 of the transcript of the formal hearing clearly and convincingly demonstrates a lack of clinical competency on the part of the Respondent particularly as it relates to the Respondent's incompetent and inappropriate treating of fractured bones, dispensing of cortisone predisposing an animal to infection, his expressed
concern regarding the exposure of the nervous system is one area with action limited to treatment of a fracture in another area, and his position that his treatment of a fracture of the tibia was life saving when it was not.
Additionally, the Board hereby sets the terms of Respondent's probation to include continuing compliance with the Florida veterinary continuing education requirements during suspension and on probation and obeying the laws and rules of Florida, with the costs of complying with this Order to the borne by the Respondent.
Pursuant to Section 120.59, Florida Statutes, the parties are hereby notified that they may appeal this final order by filing one copy of a notice of appeal with the Clerk of the agency and by filing the filing fee and one copy of a notice of appeal with the District Court of Appeal within thirty (30) days of the date this final order is filed.
This Final Order shall become effective upon filing with the Clerk of the Department of Professional Regulation.
DONE AND ORDERED this 3rd day of August, 1990.
BOARD OF VETERINARY MEDICINE
MELANIE DONOFRO CHAIRMAN
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been furnished to Dr. Samy Helmy, RR2, Box 223B, Wildwood, Florida 34785, Mr. William E. Lackey, Post Office Box 279, Bushnell, Florida 33513, and Ms.
Laura Gaffney, Department of Professional Regulation, Northwood Centre, 1940 North Monroe Street, Tallahassee, Florida 32399-0750 by United States Mail on or before 5:00 p.m., this 3rd day of August, 1990.
| Issue Date | Proceedings |
|---|---|
| Jan. 12, 1990 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 03, 1990 | Agency Final Order | |
| Jan. 12, 1990 | Recommended Order | Evidence clearly establishes veternarian's negligence and malpractice in treatment of dog which, along with prior misconduct, supports license discipline. |
BOARD OF VETERINARY MEDICINE vs MICHAEL J. PONTE, 89-002464 (1989)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs DANIEL T. MCGUIRE, M.D., 89-002464 (1989)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs CHARLES FINN, M.D., 89-002464 (1989)
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs HULLON E. SWITZER, M.D., 89-002464 (1989)
