STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, BOARD OF ) VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1435

)

MARIANNE T. KEIM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Richard Hixson, held a formal hearing in this case on April 18, and April 25, 1995 in Tampa, Florida.

APPEARANCES

For Petitioner: Susan Lindgard, Esquire

James E. Manning, Qualified Representative Department of Business and

Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Edward F. Brennan, Esquire

100 South Ashley Drive, Suite 1600 Post Office Box 3429

Tampa, Florida 33601-3429 STATEMENT OF THE ISSUES

Whether Respondent's license as a veterinarian in the State of Florida should be suspended, revoked or otherwise disciplined for the alleged violations of Chapter 474, Florida Statutes, as set forth in the Administrative Complaint, to wit: Section 474.214(1)(f), Florida Statutes, by violating a lawful order of probation of the Board; section 474.214(1)(o), Florida Statutes, by committing fraud, deceit, negligence, incompetency, or misconduct in the practice of veterinary medicine; and, section 474.214(1)(r), Florida Statutes, by failing to practice veterinary 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.

PRELIMINARY STATEMENT

On March 16, 1995, Petitioner, Department of Business and Professional Regulation, (DBPR), filed an Administrative Complaint before the Board of Veterinary Medicine (Board) against Respondent, Marianne T. Keim, alleging in

three counts, violations of Chapter 474, Florida Statutes. Count I alleges that Respondent violated section 474.214(1)(f), Florida Statutes, by failing to comply with a lawful order of the Board. Count II alleges that Respondent violated section 474.214(1)(o), Florida Statutes, in that she is guilty of fraud, deceit, negligence, incompetency, or misconduct related to the practice of veterinary medicine. Count III alleges that Respondent violated section 474.214(1)(r), Florida Statutes, in that she is guilty of incompetence or negligence by failing to practice veterinary 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.

On March 21, 1995, Respondent, pursuant to section 120.57(1), Florida Statutes, requested a formal administrative hearing on the allegations of the Administrative Complaint. Because emergency suspension action had been taken against Respondent's license by DBPR, Respondent further requested that the proceedings be conducted on an expedited basis.

On March 24, 1995, DBPR referred the matter to the Division of Administrative Hearings (DOAH), and concurred in Respondent's request for an expedited hearing. The request of the parties to expedite was granted, and a formal hearing was conducted in this case on April 18, and April 25, 1995.

At hearing, Petitioner presented the testimony of Susan Foster, Dr. Carlos Piniero, Dr. Robert Adey, Amy Armstrong, Dr. Robert Titus, Diane Gossett, and Dr. Gary Ellison. Petitioner also presented twelve (12) exhibits which were admitted into evidence.

Respondent testified in her own behalf, and also presented the testimony of Dr. Richard Goldston, Dr. Edward Dunham, Sue Foster, Diane Gossett, Dr. Gary Ellison, Donna Bayne, Daryl Dunisch, Thurston Smith, and Dr. Lawrie Glickman.

Respondent presented nineteen exhibits which were admitted into evidence.

A transcript of the hearing conducted in this case was filed on May 11, 1995. Petitioner filed a Proposed Recommended Order on May 22, 1995, and Respondent filed a Proposed Recommended Order on May 26, 1995. Specific rulings on the proposed findings of fact of each party are attached as an Appendix hereto.

On June 8, 1995, Respondent filed a letter to the undersigned hearing officer setting forth exceptions to the Petitioner's Proposed Recommended Order. On June 16, 1995, Petitioner requested, and was granted leave to respond to the exceptions by June 26, 1995.

At the close of Petitioner's case, Respondent made an ore tenus motion for a directed verdict of dismissal as to Counts II and III of the Administrative Complaint. For the reasons set forth in the Recommended Order below, it is recommended that Respondent's motion to dismiss Counts II and III of the Administrative Complaint be GRANTED. Petitioner's post-hearing motion to strike the letter of Respondent's counsel dated June 6, 1995, is DENIED.

FINDINGS OF FACT

1. Respondent, Marianne T. Keim, is a licensed veterinarian in the State of Florida, holding license number VM 0005113 (Veterinarian). Respondent's license to practice veterinary medicine is currently under probation and emergency suspension.

2. At all material times, Respondent practiced veterinary medicine in Tampa, Florida.

Findings As To Count I

Of The Administrative Complaint

1. On August 18, 1994, the Board of Veterinary Medicine entered a Final Order in settlement of five (5) different cases involving allegations against the Respondent. The Final Order adopted a Stipulation of the parties, and was filed with DBPR on August 22, 1995. The Final Order resulted in the placing of Respondent's license to practice veterinary medicine on probation for a period of five (5) years. The Final Order imposed certain conditions on the Respondent's practice of veterinary medicine, and also imposed an administrative fine on Respondent in the amount of $3,000, payable within 180 days from the date the final order was rendered by the Board.

   
   

2. The Final Order provides in pertinent part:

   
   

   1. The Respondent shall, in the future, comply with Chapters 455 and 474, Florida Statutes, and the rules promulgated pursuant thereto.

   2. The Respondent shall be placed on probation for five (5) years. The terms of the Respondent's probation are:

1. Compliance with all requirements of this Final Order.

2. Practice veterinary medicine with

   direct supervision by a Florida licensed veterinarian for not less than forty (40) hours per month. All other practice of veterinary medicine shall be with indirect supervision by a Florida licensed veterinarian.

3. Personally appear before the Board of Veterinary Medicine at the first meeting after probation commences, semiannually, at the last meeting before probation terminates and at such other times as may be requested by the Board. The Respondent

   shall be notified by the Board staff of the date, time, and place of the Board meeting whereat Respondent's appearance is required. Failure of Respondent to appear as requested or directed shall be considered a violation of the terms of this Order, and shall subject the Respondent to disciplinary action.

4. The direct and indirect supervisor shall be approved by the Board and shall review all aspects of the Respondent's practice of veterinary medicine. In the event the Respondent desires to change monitors, the Respondent shall notify the Board at least ten (10) days prior to the last date that the former monitor will be available. The Respondent shall allow the monitors access to Respondent's patient records, calendar,

   patient logs, or other documents necessary for the monitor to supervise the Respondent as detailed below.

   The responsibilities of the indirect monitoring veterinarian shall include the following:

   1. Review 25 percent of Respondent's active patient records at least once a month at the Respondent's office for the purposes of ascertain- ing the appropriateness of the Respondent's treat- ment, medication management, and the thoroughness with which her records are kept. The monitor shall go to Respondent's office once every month and shall review Respondent's calendar or patient log and shall select the records to be reviewed.

   2. Submit reports to the Board on a quarterly basis, in affidavit form, at least twenty-eight (28) days prior to each applicable Board meeting and each of which shall include:

      1. A description of Respondent's practice (type and composition).

      2. A statement addressing Respondent's com- pliance with the terms of probation.

      3. A brief description of the monitor's relationship with the Respondent.

      4. A statement advising the Board of any problems which have arisen.

      5. A summary of the dates the monitor went to the Respondent's office, the number of records reviewed, and the overall quality of the records reviewed.

      6. Any other reporting requirements.

   3. Maintain contact with the Respondent on a frequency of at least once per month. In the event that the monitor is not timely contacted by the Respondent, then the monitor shall report this fact in writing to the Board.

   4. The Respondent's monitor shall appear before the Board at the first meeting following commencement of the probation and at such other times as directed by the Board. It shall be Respondent's responsibility to ensure the appearance of her monitor to appear as requested or directed. Failure of the monitor, with- out good cause shown, to appear as requested or directed shall constitute a violation of the terms of this Order and shall subject the Respondent to disciplinary action.

   
   

   The responsibilities of the direct monitoring veterinarian shall include the following:

   1. Submit reports to the Board on a quarterly basis, in affidavit form, at least twenty-eight

      1. days prior to each applicable Board meeting and each of which shall include:

         1. A description of Respondent's practice (type and composition).

         2. A statement addressing Respondent's compliance with the terms of probation.

         3. A brief description of the monitor's relationship with the Respondent.

         4. A statement advising the Board of any problems which have arisen.

         5. A summary of the dates the monitor went to the Respondent's office, the number of records reviewed, and the overall quality of the records reviewed.

         6. Any other reporting requirements.

   2. The Respondent's monitor shall appear before the Board at the first meeting following commencement of the probation and at such other times as directed by the Board. It shall be Respondent's responsibility

   to ensure the appearance of her monitor to appear as requested or directed. Failure of the monitor, with- out good cause shown, to appear as requested or directed shall constitute a violation of the terms

   of this Order and shall subject the Respondent to disciplinary action.

   
   

5. The Respondent shall obtain a second opinion, by a licensed veterinarian approved by the Board with respect to surgeries, excluding normal or routine spays, neuters, croppings and treatment of abscesses.

6. The Respondent shall pay an Administrative Fine of three thousand dollars ($3,000). As Respondent has filed for protection in the United States Bankruptcy Court and has filed a plan of reorganization with said Court, the Respondent shall be allowed one hundred eighty

(180) days from the rendition of the Final Order by the Board of Veterinary Medicine, to pay the fine. The fine shall be paid by the Respondent to the Executive Director of the Board of Veterinary Medicine, 1940 North Monroe Street, Tallahassee, Florida, 32399-0750.

This time period may be extended by the Board for good cause shown. Any request for extension shall be submitted, in writing, to the Executive Director prior to the expiration of the 180 day time limit, at the address above.

1. Pursuant to the Final Order, on October 19, 1994, Respondent made a required probationary appearance at the Board meeting in Orlando, Florida. When the meeting commenced, Respondent did not appear with her direct or indirect monitor, and the Board found Respondent in violation of the Final Order in that Respondent had not met the terms and conditions of her probation by failing to have her direct and indirect monitor appear for approval at the Board meeting. Respondent had sufficient time to locate a direct or indirect monitor, or to request an extension of time from the Board.

   
   

2. At the October 19, 1994 Board meeting, Respondent represented to the Board that she had experienced difficulty in locating qualified, licensed veterinarians willing to accept the responsibilities of serving as her direct and indirect monitors as required by the Final Order. Prior to the conclusion of the Board meeting of October 19, 1994, Dr. Carlos Piniero, a veterinarian licensed in the State of Florida, and practicing in Hillsborough County,

   appeared and stated his willingness to serve as Respondent's indirect monitor. Respondent further indicated to the Board that she had obtained the consent of Dr. Robert Adey, a veterinarian licensed in the State of Florida, practicing in Winter Haven, Florida, to serve as her direct monitor.

   
   

3. Pursuant to the Board's determination that Respondent had violated the terms and conditions of her probation, Respondent was instructed to discontinue her practice of veterinary medicine pending the Board's approval of her direct and indirect monitor as required by the Final Order. The Chairman of the Board, Dr. Bernard Myers, was given the authority to grant temporary approval for Respondent's direct and indirect monitors until the next meeting of the Board.

   
   

4. On October 25, 1994, Dr. Robert Adey was temporarily approved by the Board chairman as Respondent's direct monitor, and Dr. Carlos Piniero was temporarily approved by the Board chairman as Respondent's indirect monitor.

   
   

5. By letters dated December 22, 24, and 25, 1994, Respondent wrote individually to the seven members of the Board, Dr. Robert E. O'Neil, Dr. Carlos

   R. Pereira, Dr. Bernard Myers, Dr. Teresa L. Lightfoot, and Dr. Thomas F. Whitley, Ms. Cynthia Lewis, and Mr. Lewis Jennings, informing each individual member of her attempts to comply with the Final Order, as well as her difficulties in complying with the requirements of the direct monitor relationship. In these letters to the individual Board members, Respondent requested a reduction in her direct monitoring requirement from forty (40) hours per month to twenty (20) hours per month.

   
   

6. At the next Board meeting on January 4, 1995, Respondent appeared with counsel, and with her direct and indirect monitors. After inquiring of the monitors and Respondent, the full Board confirmed the approval of Dr. Adey and Dr. Piniero to serve as Respondent's direct and indirect monitors, respectively. The Board did not consider, nor did the Board approve a reduction of the required forty (40) hours per month of direct monitoring of Respondent's practice of veterinary medicine by Dr. Adey.

   
   

7. Respondent began her direct monitor relationship with Dr. Adey on October 20, 1994. As agreed to by her direct monitor, Respondent was required to attend Dr. Adey's clinic in Winter Haven, Florida, on each Thursday.

   
   

8. From the onset, Respondent experienced difficulty in complying with the terms and conditions of the Final Order with respect to her relationship with her direct monitor, Dr. Adey. Because Dr. Adey practiced in Winter Haven, Respondent was required to travel approximately two hours each way from her office in Tampa, Florida, to Dr. Adey's clinic. Additionally, Dr. Adey restricted Respondent's activities in his clinic and, as a general rule, only allowed Respondent to observe his own practice. Dr. Adey expressed reservations regarding Respondent's abilities as a veterinarian, and accordingly, did not allow Respondent to practice veterinary medicine in his clinic except in very routine cases, and then only under his own observation and supervision, or the supervision of experienced members of his clinic staff. On one occasion, Dr. Adey gave Respondent an assignment on liver disease to complete at her own clinic. Respondent would also on occasion consult by telephone with Dr. Adey; however, Dr. Adey did not at any time monitor Respondent's practice of veterinary medicine at Respondent's Tampa clinic.

   
   

9. According to Dr. Adey's records, Respondent was in attendance at Dr. Adey's clinic for approximately 15 hours in October of 1994, for approximately

   28 hours in November of 1994, for approximately 32 hours in December of 1994,

   and for approximately 32 hours in January of 1995. Respondent's travel time, assignment time, or telephone consultation time are not included in the computation of these hours.

   
   

10. From October 20, 1994 through the end of January 1995, Respondent missed three of her scheduled days for attendance at Dr. Adey's clinic. Two of the days were cancelled by Dr. Adey, and one day was cancelled by Respondent due to a meeting with her attorney.

    
    

11. On January 27, 1995, Dr. Adey wrote a letter to Diane Gossett, an investigator with DBPR, stating that his direct monitor relationship with Respondent was unsatisfactory, and that under the circumstances, he was not able to attain the quality of direct monitoring of Respondent's practice of veterinary medicine that the Final Order of the Board required.

    
    

12. On February 8, 1995, Dr. Adey wrote another letter to Diane Gossett expressing his continuing frustration with the direct monitor relationship with the Respondent, and tendering his resignation as direct monitor within ten (10) days. Dr. Adey subsequently agreed to remain as Respondent's direct monitor until March 12, 1995.

    
    

13. On March 3, 1995, Respondent wrote to Susie Love, Program Administrator with the Board, expressing dissatisfaction with the inflexibility of the monitor situation, and requesting modifications of the Board's requirements in this regard. Respondent was informed by Susie Love by letter dated March 6, 1995, that approval of a direct monitor to replace Dr. Adey would have to be approved at the next Board meeting by the full Board. No action was taken by the Board with respect to the approval of a new direct monitor prior to the initiation of the emergency suspension proceedings against Respondent's license.

    
    

14. The nature of the direct monitoring relationship established by Respondent with Dr. Adey did not satisfy the requirements imposed by the Final Order, in that Respondent did not practice veterinary medicine under the direct monitoring of Dr. Adey, but only was in attendance, and observed Dr. Adey's practice in Winter Haven one day a week.

    
    

15. Respondent's indirect monitor, Dr. Carlos Piniero reviewed at least 25 percent of Respondent's records on a regular basis, consulted with Respondent as to her organization and record-keeping, and in this respect, Respondent was in compliance with the Final Order of the Board.

    
    

16. Respondent has not paid the $3,000 fine assessed by the Board which was due 180 days from entry of the Final Order. Payment of the fine is overdue.

    
    

17. By letter addressed to Susan Foster, Executive Director of the Board, dated December 5, 1994, Respondent requested an extension of time to pay the

    $3,000 fine. The letter was notarized by Thurston R. Smith also on December 5, 1994. Thurston Smith is a part-time employee of Respondent. The heading of the letter contains the correct business address of Susan Foster at 1940 North Monroe Street, Tallahassee, Florida, 32399. Respondent did not personally mail or fax the letter to Susan Foster, or request a return receipt. Dr. Lawrie Glickman, a friend of Respondent's testified that he believed the letter was among several items of mail he posted for Respondent. Thurston Smith testified that he believed the letter was among several items he faxed to DBPR for Respondent. Susan Foster did not receive the December 5, 1994, letter from Respondent by mail or by fax.

18. DBPR has established normal and acceptable business procedures for processing incoming correspondence. In accordance with DBPR's normal business procedures, mailed or faxed letters addressed to the Board's Executive Director, Susan Foster, would routinely be opened and delivered to her office. Ms. Foster was personally familiar with Respondent, and also with the Board's actions relating to Respondent. Ms. Foster had received correspondence from Respondent on several other occasions, and had also received telephone calls from Respondent on several occasions. Any communication received by Ms. Foster from Respondent requesting an extension of time to pay a fine would, in the normal course of DBPR's procedures, have been brought to the Board's attention by Ms. Foster.

    
    

19. A second handwritten letter from Respondent dated December 19, 1994, addressed to Susan Foster at the DBPR office in Tallahassee, also requested an extension of time to pay the $3,000 fine. The handwritten letter states that this is Respondent's second request for extension of time. Dr. Glickman testified he mailed and faxed this letter. Susan Foster did not receive the second letter. Respondent did not personally inquire of Susan Foster as to the status of Respondent's request for extension of time, nor did Respondent request that Ms. Foster place this matter on the agenda of the Board's next meeting on January 4, 1995. Respondent appeared, with counsel, at the next Board meeting on January 4, 1995; however, neither Respondent nor her counsel raised the issue of an extension of time in which to pay the fine with the Board.

    
    

20. The Board did not consider, or approve an extension of time for Respondent to pay the $3,000 fine imposed by the Final Order.

    
    

21. Respondent has not complied with the terms and conditions of the Final Order entered by the Board. Respondent did not satisfy the forty (40) fours per month of required direct monitoring of her practice of veterinary medicine. Respondent did not pay the $3,000 fine imposed by the Board within 180 days as required by the Final Order. Respondent's efforts in this regard do not constitute substantial compliance with a lawful order of the Board.

    
    

    Findings As To Counts II And III Of The Administrative Complaint

    
    

22. On or about October 25, 1994, Mrs. Amy Armstrong inquired of Respondent as to performing a declaw procedure (also known as an onychectomy) on Mrs. Armstrong's six-month old English Springer Spaniel, Tilly. Mrs. Armstrong was concerned because her dog was digging in the yard, and scratching inside the house. Mrs. Armstrong was also concerned that her dog's digging and scratching would upset her landlord, and that she would be financially responsible for the damages caused by the dog.

    
    

23. Mrs. Armstrong had initially contacted Respondent because Respondent's clinic advertised low-cost rates, and Mrs. Armstrong had been satisfied with Respondent's spay and neuter procedures previously performed on Mrs. Armstrong's cat and another dog.

    
    

24. Mrs. Armstrong again called Respondent's clinic in mid-November 1994, and spoke with Daryl Dunnisch a member of Respondent's clinic staff regarding the declawing procedure. In late December of 1994, Mrs. Armstrong called again and Respondent personally discussed the declawing procedure with her. Respondent informed Mrs. Armstrong that the procedure required the dog to be anesthetized, but that the procedure should not be complicated for a young dog, that the

    recovery period would be a few days during which the dog would be sedated, and that the procedure should solve the digging and scratching problems Mrs.

    Armstrong was experiencing. Respondent also offered Mrs. Armstrong the alternative of filing down the dog's nails. Respondent's records reflect that Mrs. Armstrong was forewarned of the severe pain the dog would experience, as well as the lengthy recovery period. Respondent quoted Mrs. Armstrong a price of $65.00 for the declawing procedure. Mrs. Armstrong did not represent to Respondent or to a member of Respondent's office staff that she would euthanize the dog unless the declawing procedure were performed, but stated that she would need to consider other options about keeping the dog. As to this issue, the testimony of Mrs. Armstrong is deemed more credible.

    
    

25. In regard to the declawing of her dog, Mrs. Armstrong also contacted another veterinarian, Dr. Robert Titus, at the Kingsway Animal Clinic, Brandon, Florida, to whom Mrs. Armstrong had, on occasion, previously taken her pets. Mrs. Armstrong inquired of the cost of the declawing procedure. Dr. Titus does not perform declawing procedures on healthy dogs, and told his staff to quote Mrs. Armstrong a price in excess of $285 to discourage her from seeking the procedure.

    
    

26. After considering the price quoted by Respondent, Mrs. Armstrong made an appointment with Respondent to perform the declawing procedure on January 12, 1995.

    
    

27. A declawing procedure on a healthy dog is not a normal or routine surgical procedure. This surgical procedure, which is more complicated in an animal with nonretractible claws, involves the removal of the third phalange, which is either a total or subtotal removal of the nail and the complete nail bed along the bone. The procedure results in severe pain in the dog which usually lasts for two or three weeks during which the dog should be medicated and closely examined for possible infection. Declawing of a healthy dog is rarely performed, although one text, General Small Animal Surgery, edited by Ira

    M. Gourley, D.V.M. and Philip B. Vaseur, D.V.M., which is an accepted treatise used in the practice of veterinary medicine, states that an onychectomy on a healthy dog is indicated to prevent digging or property damage. Performing an onychectomy is not completely prohibited under all circumstances in the practice of veterinary medicine.

    
    

28. Under the terms and conditions of the Final Order, Respondent was restricted from performing any surgery other than "normal and routine spays, neuters, croppings and treatment of abscesses" without obtaining a second opinion by a licensed veterinarian approved by the Board. The Final Order did not, however, require Respondent to abide by the second opinion.

    
    

29. Respondent consulted by telephone with her direct monitor, Dr. Adey, regarding performing the declawing procedure. Dr. Adey strongly advised Respondent against performing the procedure. After "shouting out" his objection to the procedure, Dr. Adey, nonetheless, reviewed with Respondent the appropriate incisions to be made in performing the surgery. Dr. Adey did not forbid Respondent from performing the surgery because he did not believe that as Respondent's direct monitor he had the authority to do so.

    
    

30. Respondent also discussed the declawing procedure with her indirect monitor, Dr. Piniero. Dr. Piniero advised Respondent that he did not believe in performing a declawing procedure on a healthy dog, and that in his opinion, such surgery was indicated only when there was a medical basis for the procedure, such as a cancer or a tumor present in the paw.

31. Despite the advice of her direct and indirect monitors, Respondent on January 12, 1995, performed an onychectomy on Mrs. Armstrong's dog. Dr. Piniero was present at Respondent's clinic when Respondent began the operation; however, Dr. Piniero did not supervise, or otherwise participate in the surgery, and left before the surgery was completed.

    
    

32. Respondent had not previously performed an onychectomy. The surgery on the Armstrong dog lasted more than two hours.

    
    

33. Following the surgery, the Armstrong dog remained at Respondent's clinic. The next day, January 13, 1995, Amy Armstrong called Respondent and was informed that her dog was doing well, but would be in severe pain for a while and that the recovery period would be approximately two weeks. On January 14, 1995, Mrs. Armstrong's husband visited the dog at Respondent's clinic. The dog's paws were heavily bandaged, but the dog was able to ambulate at that time.

    
    

34. On Sunday, January 15, 1995, the Mr. Armstrong brought the dog home. At the time the dog was released, Respondent prescribed an antibiotic, Keflex, for the dog. Mrs. Armstrong spoke to Respondent by telephone, and was told to bring the dog back the following Wednesday or Thursday, to change the bandages. Respondent also informed Mrs. Armstrong that there would be additional charges for the care of the dog in excess of the original price of $65.00 for the surgical procedure. Mrs. Armstrong did not agree to the additional charges.

    
    

35. When the dog returned home, Mrs. Armstrong became very upset. The dog was in severe pain, and could not ambulate. That evening Respondent called Mrs. Armstrong to check on the dog. Mrs. Armstrong expressed her concern for the dog's painful condition, and Respondent suggested the dog be given aspirin or Ascriptin.

    
    

36. On Monday morning, January 16, 1995, Mrs. Armstrong observed a thick substance which she believed to be blood oozing through the dog's heavy bandages. Mrs. Armstrong became extremely concerned. She took the dog back to Dr. Robert Titus, at the Kingsway Animal Clinic, in Brandon, Florida.

    
    

37. Dr. Titus observed what was determined to be serum seepage coming through the bandages on the dog's front paws, and noticed a "foul odor" similar to rotten meat coming from the paws. At that time, the dog's temperature was elevated to 104 degrees from a normal range of 100-102 degrees. Dr. Titus attempted to remove the bandages; however, because of the dog's severe pain, Dr. Titus was required to anesthetize the Armstrong dog in order to remove the bandages. Dr. Titus observed that the dog's front paws were swollen more than twice the normal size, and found serum leakage and serum blisters over the paws. Serum is a bodily fluid typically found at sites of inflammation. Dr. Titus also noticed a dehissing, or coming apart, of some sutures.

    
    

38. Dr. Titus cleansed the surgical areas with antiseptics and antibiotics, and then rebandaged the paws. Dr. Titus sprayed an alum solution on the bandages to deter the dog from chewing on them. Dr. Titus also prescribed a systemic antibiotic (tetracycline) to fight any infection which might have been present, and also Tylenol 3 for pain. Dr. Titus sent the dog home with instructions to keep the dog as comfortable as possible, and to bring the dog back in two days to again cleanse the paws and rebandage them.

    
    

39. On January 18, 1995, Mrs. Armstrong brought the dog back to Dr. Titus. The dog still was in severe pain, and the dog's temperature remained elevated at

    104 degrees. Dr. Titus again was required to anesthetize the dog to remove the bandages. Dr. Titus observed more serum seepage, and cleansed the surgical areas, rebandaged the paws, and sent the dog home with the same instructions regarding care and medication.

    
    

40. On January 20, 1995, Mrs. Armstrong called Dr. Titus to inform him that the dog was still having difficulty walking. Dr. Titus advised Mrs. Armstrong to continue the same care and medication procedures for a few more days, and then to bring the dog back.

    
    

41. On January 23, 1995, Dr. Titus again examined the dog. The dog's temperature was 101 degrees. Dr. Titus cleansed and again rebandaged the dog's paws. At that time the swelling was greatly diminished, and no serum leakage was observed. The paws appeared to be healing, and Dr. Titus discontinued the antibiotics and pain medication. Mrs. Armstrong was informed when to take the bandages off, and to return to Dr. Titus only if the dog showed severe pain.

    
    

42. Dr. Titus expressed no opinion as to whether the surgery on the Armstrong dog was performed in accordance with the standard of care acceptable in the practice of veterinary medicine.

    
    

43. On January 27, 1995, Mrs. Armstrong called Dr. Titus to inform him that the dog was doing well, and was able to run. The Armstrong dog has now recovered from the surgery; however, the declawing procedure on the dog's front paws has not stopped the digging problem. Mr. and Mrs. Armstrong have kept the dog.

    
    

44. Dr. Gary W. Ellison, Associate Professor at the College of Veterinary Medicine of the University of Florida, was qualified as an expert witness for Petitioner. Dr. Ellison testified that an onychectomy is not a common veterinary procedure. Unlike the declawing of an animal with retractable claws, such as a cat, declawing of an animal with nonretractible is a more complicated and difficult procedure and, in Dr. Ellison's opinion, should not be performed unless there is a medical necessity. Dr. Ellison, after reviewing the records, and hearing the testimony in this case, concluded that Respondent did not comply with the minimum standard of care and treatment in performing an onychectomy on the Armstrong dog. Specifically, Dr. Ellison testified that Respondent failed to properly consult with the owner, failed to recommend alternatives to the procedure, and should not have performed the onychectomy except for medically necessary reasons. Dr. Ellison further opined that Respondent was not prepared to do the surgery, which he considered improperly done, resulting in abnormal swelling, bleeding and infection of the paws.

    
    

45. Dr. Ellison, however, acknowledged that General Small Animal Surgery, edited by Ira M. Gourley and Philip Vaseur, is an accepted treatise used in the practice of veterinary medicine, and that this treatise states that onychectomy is indicated to prevent digging and property damage. Dr. Ellison also acknowledged that the medication prescribed by Respondent for the Armstrong dog was acceptable under the circumstances, and that it is not unexpected for an onychectomy to produce swelling, bleeding and potential infection.

    
    

46. Dr. Richard Goldston, a veterinarian qualified as an expert witness for Respondent, testified that in his opinion performing an onychectomy on a healthy dog was not an acceptable procedure unless there was no alternative and the dog would be euthanized. Dr. Goldston also recognized that accepted treatises state that an onychectomy is indicated to prevent digging. Dr. Goldston further testified that even a properly performed onychectomy produces inflammation and

    swelling, and that there would be a likelihood of infection. According to Dr. Goldston, normal post-operative recovery is two or three weeks, and a recovery period of less than two weeks would be considered successful. The recovery period of the Armstrong dog was acceptable.

    
    

47. Another veterinarian, Dr. Edward Dunham, testified that in his twenty- five years of practice, he had performed an onychectomy on three occasions, and that while the procedure was not common, the procedure did not violate the ethical standards of the practice of veterinary medicine. Dr. Dunham further testified that he would not perform an onychectomy again.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

49. Pursuant to Chapter 474, Florida Statutes, the Board of Veterinary Medicine is authorized to revoke, suspend, or otherwise discipline the license to practice veterinary medicine of any licensee who violates the provisions of section 474.214, Florida Statutes.

    
    

50. In licensure disciplinary actions, Petitioner has the burden of establishing by clear and convincing evidence the facts upon which the allegations of misconduct are based. Ferris v. Turlington, 570 So.2d 292 (Fla. 1987).

    
    

51. "Clear and convincing evidence" requires that evidence must be found to be credible, facts to which witnesses testify must be distinctly remembered, testimony must be precise and explicit, and witnesses must be lacking in confusion as to facts in issue; evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established. Slomowitz v. Walker, 429 So. 2d 797 (Fla. 4th DCA 1983).

    
    

    Conclusions as to Count I

    of the Administrative Complaint

    
    

52. Section 474.214(1)(f), Florida Statutes, provides:

    
    

    474.214 Disciplinary proceedings.-

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

    (f) Violating any provision of this chapter

    or chapter 455, a rule of the board or department, or a lawful order of the board or department previously entered in a disciplinary hearing,

    or failing to comply with a lawfully issued subpoena of the department.

    
    

53. On August 18, 1994, the Board of Veterinary Medicine entered a lawful order placing Respondent's license to practice veterinary medicine on probation. The Final Order lawfully required Respondent to obtain direct and indirect monitors and to appear with her proposed monitors at the first Board meeting after the commencement of probation for approval. The Final Order lawfully required Respondent to practice veterinary medicine under the supervision of a

    direct monitor for not less than forty hours a month. The practice of veterinary medicine under such direct supervision did not mean merely attending and observing in another clinic, nor did the practice of veterinary medicine as set forth in the Final Order mean time spent in travel or on the telephone with a direct monitor. The Final Order lawfully imposed a fine of $3,000 on Respondent. Under the Final Order, Respondent carried the burden of ensuring that any request for extension of time in which to pay the fine was submitted in writing to the Executive Director of the Board.

    
    

54. Respondent failed to comply with the lawful order of the Board in that:

    1) Respondent failed to appear with her proposed direct monitor at the Board meeting of October 19, 1994; 2) Respondent failed to practice veterinary medicine under the supervision of a direct monitor for forty (40) hours a month during the months of October, November and December of 1994, and the month of January of 1995; and, 3) Respondent failed to pay, or obtain an extension of time in which to pay, a fine in the amount of $3,000, lawfully imposed by the Board, and required to be paid with 180 days of the entry of the Final Order of the Board.

    
    

55. Respondent is in violation of section 474.214(1)(f), Florida Statutes.

    
    

    Conclusions as to Counts II and

    III of the Administrative Complaint

    
    

56. Section 474.214(1)(o) and (r) provide:

    
    

    474.214 Disciplinary proceedings.-

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

    2. may be taken:

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

    (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 accept- able under similar conditions and circumstances.

    
    

57. As grounds for disciplinary action in the practice of veterinary medicine, "negligence" and "incompetence" mean a failure to comply with the minimum standard of care or treatment required of a veterinarian under the circumstances. Purvis v. Department of Professional Regulation, 461 So.2d 134 (Fla. 1st DCA 1984).

    
    

58. While not a routine or recommended procedure, the performance of an onychectomy, in and of itself, is not a prohibited procedure in the practice of veterinary medicine. Not one of the six veterinarians (other than the Respondent) who testified in this case would now perform an onychectomy except for medical reasons; however, only Dr. Ellison opined that performing the procedure on a healthy dog violated acceptable standards of care, and an accepted treatise states the procedure is indicated for nonmedical reasons. Moreover, the evidence is not clear and convincing that Respondent performed the procedure in a negligent or incompetent manner, nor that Respondent failed to prescribe proper medication for post-operative recovery. The Armstrong dog, although under the care of Dr. Titus, recovered from the surgery in an acceptable post-operative time. It is speculative to determine whether post-

    operative recovery would have been as successful had the dog remained under Respondent's care, and Dr. Titus did not testify that Respondent had performed the procedure improperly.

    
    

59. The evidence does reflect that there was a lack of communication between Mrs. Armstrong and Respondent and that Mrs. Armstrong was not fully aware of the painful consequences associated with the procedure; however, the evidence is not clear and convincing that Respondent failed to offer alternatives, or to communicate the nature of the consequences of the procedure to Mrs. Armstrong or that such failure violated the minimum standard of care and treatment required under the circumstances.

    
    

60. The evidence is not clear and convincing that Respondent committed fraud, deceit, negligence, incompetency, or misconduct, in or related to the practice of veterinary medicine.

    
    

61. The evidence fails to establish that Respondent is in violation of section 474.214(1)(o), Florida Statutes.

    
    

62. The evidence is not clear and convincing that Respondent is guilty of incompetence or negligence by failing to practise 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.

    
    

63. The evidence fails to establish that Respondent is in violation of section 474.214(1)(r), Florida Statutes.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

1. As to Count I, that Respondent's license be SUSPENDED for six months, that Respondent's probation be continued for five (5) years, with additional requirements for direct supervision.

2. It is further recommended that Counts II and III be DISMISSED. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of June,

1995.

RICHARD HIXSON

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 30th day of June, 1995.

APPENDIX

As to Petitioner's Proposed Findings of Fact

1. - 30. Accepted and incorporated.

1. Rejected as irrelevant.

2. - 54. Accepted and incorporated.

55. - 61. Accepted and incorporated.

1. Accepted, but Dr. Ellison further acknowledged that there is no prohibition on the procedure.

2. Accepted, but Dr. Ellison further testified there is no prohibition on the procedure.

3. Accepted, but Dr. Goldston and Dr. Dunham further testified that they had performed declawing operations, and that there is no prohibition on performing the procedure.

As to Respondent's Proposed Findings of Fact

1. - 7. Accepted and incorporated.

1. Accepted, except for second sentence which is rejected as irrelevant.

2. - 11. Accepted and incorporated.

1. Accepted as to the number of hours.

2. Accepted and incorporated.

3. Accepted to the extent that on one occasion Dr. Adey gave Respondent an assignment.

4. Accepted as to dates cancelled, rejected as to reasonableness of effort.

5. Rejected as not supported by the evidence.

6. Accepted and incorporated.

7. Accepted and incorporated.

8. Accepted, except for second sentence.

9. and 21. Accepted and incorporated.

1. Rejected.

2. - 28. Accepted and incorporated.

1. Accepted, except date is October 25, 1994.

2. Rejected, the initial inquiry was regarding the surgery and fee.

3. Accepted and incorporated.

4. Accepted to the extent that Mrs. Armstrong elected not to pursue nail filing.

5. and 34. Rejected.

35. - 38. Accepted.

1. Accepted except Dr. Ellison testified that the resultant swelling was abnormal.

2. Rejected.

3. - 44. Accepted.

1. Accepted, except as noted in finding 39.

2. and 47. Accepted.

1. Accepted, to the extent that there are other publications on onychectomies.

2. - 53. Accepted.

1. Accepted, except that Dr. Dunham testified he does not now perform the procedure.

2. Accepted, except that infection is a possibility, not an expectation.

3. Accepted, except as to date.

4. Rejected. See Finding 30.

5. Accepted.

6. Accepted. See Finding 32.

7. and 61. Rejected.

62. - 65. Accepted.

1. See Finding 39.

2. Accepted.

3. Accepted, except that Dr. Piniero left before the surgery concluded.

4. Rejected.

5. - 73. Accepted.

1. See Finding 45.

2. and 76. Accepted.

1. See Finding 48.

2. - 82. Accepted.

1. See Finding 54.

2. See Finding 55.

3. Accepted, to the extent that Dr. Piniero responded in a letter to DBPR that Respondent was qualified.

4. Accepted.

COPIES FURNISHED:

Susan E. Lindgard, Esquire James E. Manning, Esquire

Department of Business and Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Edward M. Brennan, Esquire

100 South Ashley Drive, Suite 1600 Post Office Box 3429

Tampa, Florida 33601-3429

Dr. Marianne T. Keim

800 West Kennedy Boulevard Tampa, Florida 33606

Lynda L. Goodgame General Counsel Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Susan Foster

Board of Veterinary Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the Final Order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 95-001435

Orders for Case No: 95-001435