Findings Of Fact In early August of 1992, petitioner Howard D. Kline began work as a waiter for respondent, making at least $189 per week. Fearing he might be infected, he gave blood samples on September 21, 1993, at the Bay County Public Health Unit and asked that they be tested for human immunodeficiency virus (HIV). The samples were sent to Jacksonville, and one was forwarded to the Center for Disease Control in Atlanta, Georgia. On September 28, 1992, a report of diagnostic testing done on petitioner's blood in Jacksonville, Petitioner's Exhibit No. 1, was mailed to the health department in Panama City. It reached Nancy S. Nichols, who worked at the Bay County Public Health Unit, on or before October 6, 1992. She had seen the results by the time she talked to Mr. Kline on October 6, 1992, and advised him that he had tested positive. The following day Mr. Kline stopped by the Four Winds restaurant to speak to Barbara Zaleski; wife of (one of) respondent's owners (and possibly herself a co-owner.) Although the restaurant had both a manager and an assistant manager, Ms. Zaleski had authority to hire and fire staff. When Mr. Kline told her of his affliction, she wept sympathetically, then told him he could no longer work at the restaurant because it was bad for business. On October 8, 1993, word reached Mrs. Nichols that the diagnostic testing of petitioner's blood done in Atlanta confirmed the earlier, positive diagnosis. Approximately a week later petitioner stopped by the restaurant to pick up his final paycheck. Two weeks elapsed after his discharge before he found another job. During the two-week hiatus, he lost wages totalling $378. The restaurant hired a waitress to take petitioner's place. The evidence did not reveal her status as regards human immunodeficiency virus. Respondent employed (a) cook(s) and (a) bookkeeper(s) as well as serving staff, an assistant manager and a manager, until it closed, more than three months after petitioner's discharge. The total number of respondent's employees was not proven, nor the total number of people respondent employed at any one time. Services of an attorney worth $4,700 have reasonably been required in the presentation of this claim, but these services would, except for $125 have also been necessary for the presentation of the same claim in court.
Recommendation It is, accordingly, RECOMMENDED: That the FCHR dismiss the petition, without prejudice to petitioner's proceeding in circuit court on any claim not predicated on the Florida Civil Rights Act of 1992, Sections 760.01-760.11 and 509.092, Florida Statutes (1993). DONE AND ENTERED this 14th day of December, 1993, in Tallahassee, Florida. ROBERT T. BENTON, II 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 14th day of December, 1993. COPIES FURNISHED: David L. Jernigan 3020 Kingswood Drive Panama City, Florida 32405 Nancy L. Jones Post Office Box 2062 Panama City, Florida 32401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact 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. At all material times, Respondent practiced veterinary medicine in Tampa, Florida. Findings As To Count I Of The Administrative Complaint 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. The Final Order provides in pertinent part: The Respondent shall, in the future, comply with Chapters 455 and 474, Florida Statutes, and the rules promulgated pursuant thereto. The Respondent shall be placed on probation for five (5) years. The terms of the Respondent's probation are: Compliance with all requirements of this Final Order. 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. 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. 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: 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. 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: A description of Respondent's practice (type and composition). A statement addressing Respondent's com- pliance with the terms of probation. A brief description of the monitor's relationship with the Respondent. A statement advising the Board of any problems which have arisen. 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. Any other reporting requirements. 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. 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: Submit reports to the Board on a quarterly basis, in affidavit form, at least twenty-eight days prior to each applicable Board meeting and each of which shall include: A description of Respondent's practice (type and composition). A statement addressing Respondent's compliance with the terms of probation. A brief description of the monitor's relationship with the Respondent. A statement advising the Board of any problems which have arisen. 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. Any other reporting requirements. 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 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. The Board did not consider, or approve an extension of time for Respondent to pay the $3,000 fine imposed by the Final Order. 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 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. 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. 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. 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. After considering the price quoted by Respondent, Mrs. Armstrong made an appointment with Respondent to perform the declawing procedure on January 12, 1995. 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. 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. 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. 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. 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. Respondent had not previously performed an onychectomy. The surgery on the Armstrong dog lasted more than two hours. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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. 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.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: 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. 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. Rejected as irrelevant. - 54. Accepted and incorporated. 55. - 61. Accepted and incorporated. Accepted, but Dr. Ellison further acknowledged that there is no prohibition on the procedure. Accepted, but Dr. Ellison further testified there is no prohibition on the procedure. 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. Accepted, except for second sentence which is rejected as irrelevant. - 11. Accepted and incorporated. Accepted as to the number of hours. Accepted and incorporated. Accepted to the extent that on one occasion Dr. Adey gave Respondent an assignment. Accepted as to dates cancelled, rejected as to reasonableness of effort. Rejected as not supported by the evidence. Accepted and incorporated. Accepted and incorporated. Accepted, except for second sentence. and 21. Accepted and incorporated. Rejected. - 28. Accepted and incorporated. Accepted, except date is October 25, 1994. Rejected, the initial inquiry was regarding the surgery and fee. Accepted and incorporated. Accepted to the extent that Mrs. Armstrong elected not to pursue nail filing. and 34. Rejected. 35. - 38. Accepted. Accepted except Dr. Ellison testified that the resultant swelling was abnormal. Rejected. - 44. Accepted. Accepted, except as noted in finding 39. and 47. Accepted. Accepted, to the extent that there are other publications on onychectomies. - 53. Accepted. Accepted, except that Dr. Dunham testified he does not now perform the procedure. Accepted, except that infection is a possibility, not an expectation. Accepted, except as to date. Rejected. See Finding 30. Accepted. Accepted. See Finding 32. and 61. Rejected. 62. - 65. Accepted. See Finding 39. Accepted. Accepted, except that Dr. Piniero left before the surgery concluded. Rejected. - 73. Accepted. See Finding 45. and 76. Accepted. See Finding 48. - 82. Accepted. See Finding 54. See Finding 55. Accepted, to the extent that Dr. Piniero responded in a letter to DBPR that Respondent was qualified. 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
Findings Of Fact On or about August 15, 1988, Respondent received a complaint from Walt Disney World questioning the "type[,] frequency and cost" of treatment that Petitioner was providing to a patient. Petitioner is employed as a physician by the Central Florida Health Center and was providing treatment to the patientin response to allergic-type complaints. As the letter acknowledges, Walt Disney World had denied the patient's claim for Workers Compensation benefits. By December 11, 1989, Respondent's investigator had completed an final investigative report on the matter. The cover sheet of the report notes that Petitioner had not responded to the charges as of December 4, 1989. The cover sheet also notes that the Social Security Administration had determined, by decision dated September 9, 1989, that the patient had suffered a "disability" since July 22, 1987. The cover sheet cites from the decision as follows: "the medical evidence establishes that the claimant has respiratory allergies, especially to molds . . ." and "the claimant's allegations of respiratory distress, nausea, anxiousness, rapid heartbeat, confusion, headaches, and loss of coordination and strength are supported by the objective and clinical laboratory findings of record and are credible." Summarizing an interview on October 26, 1989, with the manager of another allergy clinic in the Orlando area, the investigative report states that the manager stated that fee schedule for the Central Florida Health Center listed fees for patient evaluation that were "high" and for interdermal tests that were "excessive." The investigative file accompanying the investigative report contains numerous documents relating to the patient and his diagnoses and treatments. One document appears to be an independent medical examination referenced by WaltDisney World in its letter to Respondent dated August 15, 1988. By letter dated May 16, 1988, Richard F. Lockey, M.D., of the Allergy, Asthma and Immunology Associates of Tampa Bay, reported the results of his examination of the patient on April 5 and 22, 1988. Dr. Lockey found that the patient "does not have nor suffer from any allergic disease." Dr. Lockey found, among other diagnoses, "vasomotor rhinitis with possible allergic rhinitis." Expressly disagreeing with Petitioner's "impression that [the patient] has multiple problems secondary to his environment at Disneyworld," Dr. Lockey recommended that the patient could return to work without hazard to his health and needed psychiatric counselling to reassure him that he is physically healthy. Dr. Lockey's letter accompanies a complete history that he took of the patient. By letter dated December 1, 1989, and also contained in the investigative file, Diane S. Storey, D.O., employed with Petitioner at the Central Florida Health Center, explained why the only appropriate treatment for the patient was immunotherapy for long-term exposure to mold byproducts. The letter refers to the corroborating opinion of Douglas H. Sandberg, M.D. Dr. Sandberg's undated report, which is also contained in the investigative file, includes a comprehensive history. Dr. Sandberg, who is a Professor of Pediatrics and Director of the Division of Gastroenterology and Nutrition at the University of Miami Children's Hospital Center, concludes thatPetitioner has "an excellent grasp of [the patient's] overall problems and should be able to help him significantly and to have him back to work in a few weeks." The letter also states: "Testing and treatment with [Petitioner] has shown that [the patient] does have environmentally triggered illness or complex allergy." By memorandum to the probable cause panel dated February 23, 1990, Respondent noted the allegations that Petitioner violated Section 458.331(1)(t) and (n). The memorandum recommends that the case is "legally sufficient and should be reviewed by an expert to determine whether [Petitioner] operated within the standard of care, if there is a pattern of excessive and unnecessary testing and if he over-charged for his services." The probable cause panel agreed to refer the file to an expert. By letter dated June 18, 1990, Respondent requested Michael P. Pacin, M.D., to offer an expert opinion as to several questions concerning Petitioner's diagnosis and treatment of the patient. Respondent gave Dr. Pacin the entire investigative file to review. By letter dated September 13, 1990, Dr. Pacin, who is a board- certified internist and immunologist, noted the differing opinions of Drs. Lockey and Sandberg. The letter states: there can be more than one opinion regarding treating allergy patients. Dr. Lockey was trained in the same manner as I was, and I agree almost completely with everything thathe has said regarding [the patient's] treatment. On the other hand, Dr. Sandberg's views are quite contrary to mine, although they are along the lines of those which [Petitioner] has followed. [Petitioner] and Dr. Sandberg practice what is known as environmental medicine, a field which is quite controversial and not very well substantiated in the medical literature. I believe [the patient] is a very sick man; however, I do not believe, based upon the information given to me, that much of his problem is due to allergy. Most of the testing and treatment provided to him by [Petitioner] was probably unnecessary, but what surprises me is the fact that [Petitioner] is a psychiatrist who practices allergy and seems possibly to have misdiagnosed a patient with a psychiatric problem as having an allergy problem. The letter describes environmental medicine, which Petitioner practices, as a very unsubstantiated theory. These patients, as in the case of [the patient], have very subjective symptoms, some of which can be explained by other medical problems and some of which cannot be explained medically but are quite real to the patient and do, indeed, contribute to their disability. It is quite hard to define what makes them ill and to know how to treat them. Responding to the specific questions asked, the letter states: I do not feel that the [patient's] condition was adequately assessed. Based upon Dr. Lockey's assessment, I, too, feel that the [patient] is suffering from multiple psychiatric problems and that any allergy problems he has are minimal and not contributing to his overall problem. . . . I believe [Petitioner] did not treat the patient in an appropriate manner--i.e., all of the allergy testing and treatment was probably not necessary, and even if they were, they were far in excess of what would be appropriate for a patient who did haveallergy problems. . . . I do believe [the insurance company was] exploited for financial gain by [Petitioner]. Even though [Petitioner] has continued to provide medical care to the patient at no cost, I think this is only being done to cover up the exploitation that has preceded it. . . . I do not believe that [written medical records kept by Petitioner] justify the course of treatment of the patient. The test results were far from conclusive, especially based on the patient's history, to warrant such an extensive treatment regime for allergies. Dr. Pacin's letter responds to the concluding question posed by Respondent's letter as follows: [Petitioner] did not meet the "standard of care" as I and my colleagues practice allergy. I believe his diagnosis was wrong and the treatment, therefore, also was wrong. I believe the treatment would have been wrong even if the diagnosis had been correct, as it was overdone and the patient was being exploited for financial gain. This patient may have had some minimal allergy problems; however, he needs a complete psychiatric evaluation to better have an idea [sic] of what his true medical problems are. The fact that [Petitioner] is a psychiatrist tells me that this case should also be evaluated by a psychiatrist to see if he meets the "standard of care" in the field of psychiatry. It seems that [Petitioner] has missed the psychiatric diagnosis or possibly is treating the patient for allergies because that diagnosis gave him the opportunity to charge for services which would provide a greater cash flow. The only justification that I could find for [Petitioner's] deviating from the standard of care was the fact that another, rather eminent physician agreed with his diagnosis and treatment. However, as I stated above, this is due to the fact that Dr. Sandberg, as well as [Petitioner], seemed to be practicing in the very controversial field known as clinical ecology [also known as environmental medicine]. By letter dated January 30, 1991, Respondentrequested Dr. Pacin to elaborate upon: those factors which lead you to believe that the patient was suffering from multiple psychiatric problems and that any allergy problems were minimal[;] . . . which tests and treatment performed by [Petitioner] were either unnecessary or "far in excess of what would be appropriate for a patient who did have allergy problems"[;] . . . which medications were inappropriate for this patient and whether the quantities given were also inappropriate[; and] . . . what test results would have justified this treatment and . . . [what] tests not performed by [Petitioner] . . . could have definitely established if the patient was actually suffering from these allergies? By letter dated February 12, 1991, Dr. Pacin responded to these questions. The letter states that he could not say that the patient's symptoms were psychiatric and had thus recommended a psychiatric evaluation. Dr. Pacin explained that he had based his finding of "excess treatment" upon the billings and services that he had reviewed. The letter states that the patient did not suffer from sufficiently severe allergy problems to warrant immunotherapy. As to the last question, Dr. Pacin opined that "missing symptoms," not missing test results, failed to "warrant allergy testing and allergy immunotherapy." The case was considered by the probable cause panel on May 4, 1991, with a recommendation from Respondent that probable cause be found. Respondent's attorney adequately summarized Dr. Pacin's findings. Expressly relying upon Dr. Pacin's report, one panel member moved to find probable cause and file an Administrative Complaint alleging violations of 458.331(1)(t), (m), and (n). The panel approved the motionunanimously. Pursuant to the probable cause finding, Respondent filed an Administrative Complaint on May 16, 1991, in DOAH Case No. 91-4068. Corresponding to the violations cited by the probable cause panel, the Administrative Complaint alleges that Petitioner failed to practice medicine in accordance with a reasonable standard of care due to the misdiagnosis of a patient, failed to keep medical records justifying the course of treatment of a patient, and exploited a patient for financial gain. On November 6, 1991, Respondent filed a Notice of Voluntary Dismissal, and DOAH Case No. 91-4068 was closed by Order Closing File entered November 13, 1991. The opinion of Dr. Pacin adequately addressed the differing schools and training of Petitioner and Dr. Sandberg, on the one hand, and Drs. Lockey and Pacin, on the other hand. After doing so, Dr. Pacin identified clearly and unequivocally what he opined were deficiencies in Petitioner's diagnosis and, in particular, treatment of the patient. There was a reasonable basis for Dr. Pacin's opinions. Other evidence existed concerning the possible unreasonableness of the fee schedule. Although Respondent might anticipate some difficulty overcoming by clear and convincing evidence what may be a legitimate difference of professional opinion concerning diagnosis and treatment, Respondent had a reasonable basis in law and fact for filing the Administrative Complaint.
Findings Of Fact Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent's Licensure and Practice Respondent is now, and was at all times material hereto, a veterinarian authorized to practice veterinary medicine in the State of Florida under license number VM 1797. Respondent is a sole practitioner. He owns and operates the Kendall Lakes Pet Health Care Center in Dade County, Florida. Case No. 90-4549 On or about October 6, 1988, J.C. took his eight year old English Bulldog, 3/ R.C., to Respondent's office. The purpose of the visit was to have Respondent examine a lump that J.C. had discovered under R.C.'s chin while playing with the dog. Respondent had last seen R.C. a few years back when he treated him for an ear infection. Since that time R.C. had not been examined by any veterinarian. Upon approaching the dog in the examining room, Respondent noted a foul odor emanating from the dog's ears indicative of an ear infection. Furthermore, he could see that the dog's teeth had an extraordinary amount of tartar buildup and, more importantly, that the dog's lymph nodes were swollen. After palpating the dog's lymph nodes, Respondent told J.C., who was present during the examination, that it was likely that the dog had cancer 4/ and that he needed to take a blood sample from the dog. An attempt was then made to draw blood from the dog. R.C., however, in obvious discomfort, became unruly. He snarled, showed his teeth and shook his head. J.C. tried to restrain the dog by holding him down, but was unable to do so. As a result, no blood sample could be obtained. Conventional wire muzzles do not fit English Bulldogs because they are a brachycephalic or "smashed face" breed. Accordingly, in an effort to restrain R.C., Respondent tied R.C.'s mouth closed with a hospital lead. English Bulldogs tend to have congenitally small tracheas and anatomical deficiencies in the areas of their nose and throat which lead to difficulty in breathing. Consequently, caution must be exercised when muzzling this breed of dog. The practitioner should make sure that the dog is able to breath satisfactorily through its nose or that the muzzle is loose enough so that the dog can still breathe through its mouth. Unlike some English Bulldogs, R.C. was able to breath through his nose for an extended period of time, as evidenced by the fact that he slept with his mouth closed. As a general rule, tranquilizing is an attractive alternative to muzzling as a means of restraining an English Bulldog because respiratory compromise is less of a risk. The use of this method of restraint, particularly where the dog is in the advanced stages of cancer, is not free of problems, however. Whether tranquilizing or muzzling should be employed in a particular instance is a decision to be made by the practitioner based upon his assessment of the physical characteristics and condition of the dog under his care. It has not been shown that, in exercising his professional judgment to muzzle rather than to tranquilize R.C., Respondent acted in a manner inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or that he engaged in conduct that fell below any minimum standard of acceptable care for veterinarians in the community. After he was muzzled, R.C. continued to struggle. J.C. was holding the dog around the head and shoulders, but was unable to control him. Respondent therefore placed a towel over R.C. to try to subdue the dog. J.C. meanwhile maintained his grip on the dog. Shortly thereafter, R.C. went limp and collapsed. Respondent picked up R.C. and carried him to a treatment table. He took a stethoscope to the dog's chest to listen for a heartbeat. Hearing none, he performed an external cardiac massage, but with no success. Respondent looked down R.C.'s throat and determined that, because R.C.'s lymph nodes were so swollen, it would not be possible to quickly pass an endotracheal tube through the dog's trachea. Respondent therefore had a member of his staff attempt to administer oxygen to R.C. by using a "face mask" device. While this technique, as a general rule, is relatively ineffective with this breed of dog, it was the best means available under the circumstances. Respondent instructed his staff to fill a syringe with epinephrine. They did so and he administered the drug to R.C. Under ideal conditions, epinephrine should not be administered before an ECG is performed to determine if epinephrine is indicated. In the instant case, however, while he had the equipment, Respondent did not have the time to perform an ECG on R.C. Throughout the time that these efforts were being made to revive R.C., an emotionally distraught J.C. was yelling and shouting at Respondent. While Respondent was unsuccessful in his efforts to resuscitate R.C., it has not been shown that these efforts were inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or constituted conduct that fell below any minimum standard of acceptable care for veterinarians in the community. After R.C. was pronounced dead, J.C. did not request that an autopsy be done and therefore none was performed. Accordingly, it is impossible to determine with a high degree of medical certainty the cause of R.C.'s death. A member of Respondent's staff recorded information concerning R.C.'s visit on the dog's chart. The entries made, however, provided very little detail regarding what happened during the visit. There was no indication that a physical examination had been conducted. Furthermore, while there were notes that oxygen and "2 1/2 cc epinephrine" 5/ had been administered, the entries made did not reflect how they had been administered, nor did they indicate what other resuscitation efforts had been made. Also missing was an entry reflecting that an autopsy had neither been requested nor performed. Case No. 90-8113 On or about June 18, 1990, Detective Jerry Rodriguez of the Metro-Dade Police Department, who was working undercover at the time, met with Respondent at the Kendall Lakes Pet Health Care Center. The meeting was arranged by a confidential informant. After he was introduced to Respondent by the confidential informant, Detective Rodriguez entered into negotiations with Respondent to purchase Winstrol-V anabolic steroids. The negotiations culminated in Detective Rodriguez agreeing to buy a bottle of Winstrol-V from Respondent for $1,000. Respondent was led to believe by Detective Rodriguez that these steroids would be used for human consumption. Respondent accepted a $1,000 advance payment from Detective Rodriguez and issued him a receipt. Respondent did not fulfill his end of the bargain, nor did he ever have any intention to do so. He never made any steroids available to Detective Rodriguez, nor did he take any action, including ordering or prescribing the steroids, toward that end. 6/ A subsequent inspection of Respondent's veterinary facility conducted on or about June 18, 1990, revealed the presence of certain prescription medications that were beyond the expiration date or had obliterated labels which were missing lot numbers, manufacturers' names and addresses and expiration dates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Veterinary Medicine enter a final order (1) finding Respondent guilty of maintaining inadequate medical records, in violation of Section 474.214(1)(f), as charged in the Administrative Complaint issued in Case No. 90-4549; (2) imposing a $1,000.00 administrative fine and placing Respondent on probation for a period of one year for this violation; and (3) dismissing the remaining charges against Respondent set forth in the Administrative Complaints issued in Case Nos. 90-4549 and 90-8113. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1991. STUART M. LERNER 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 13th day of June, 1991.
Findings Of Fact Petitioner, Osteopathic General Hospital, is a nonprofit osteopathic hospital in Dade County, Florida. It was established in 1953, and is currently licensed for 264 beds. It is one of two osteopathic hospitals located in the Dade-Monroe County area which is the service area of the Dade-Monroe Health System Agency. It is a full service community and teaching hospital providing care in all areas of osteopathic medicine including, but not limited to, radiology. It maintains an emergency room which is open twenty-four (24) hours a day, seven (7) days per week. At the November 30, 1976, meeting of the HSA Review Committee I, Petitioner's proposal for the acquisition of a total body CAT Scanner was recommended for approval by a vote of 6 to 1 with one abstention. At its December 21st meeting, the HSA Board of Directors voted to recommend denial on the basis that South Florida already had sufficient scanners to meet current demand. On January 19, 1977, Petitioner was notified by Respondent, HRS, that the Capital Expenditure proposal was not favorably recommended to the Department of Health, Education and Welfare. The ground for the unfavorable recommendation was that further installation of CAT scanning equipment would compound low utilization of existing facilities. At the time of the hearing in this case, Nine (9) scanners were in operation in Dade County. Of these nine (9) scanners, five (5) were full body scanners and the remaining four (4) head scanners. Eight of these scanners are hospital owned and one physician owned. An additional CAT Scanner is being installed at American Hospital but no evidence was introduced to establish its projected use. Two additional hospitals in Dade County have outstanding approvals under Section 1122 of the Social Security Act (42 U.S.C.A. 1320a-1) for the installation of CAT Scanning equipment. They are Parkway General and Veterans Administration Hospitals. Outstanding 1122 approval is valid for a period of one year and may be extended for a six months period. At the time of the hearing, three (3) scanners in Dade County were utilized at a rate less than 2,040 scans per year. They are Baptist Hospital, Miami International Hospital and North Shore Hospital. Baptist Hospital is located on the other end of town from Petitioner's facility and is not reasonably accessable to patients at Petitioner's facility. The scanner at Miami International Hospital is a first generation head scanner and not a full body scanner. Even so, the utilization of the scanner at Miami international Hospital is less than 100 scans from the OPA 85 percent criteria. The facility at North Shore Hospital was recently placed at that location. The volume of studies performed at CAT Scanner installations typically grows by more than 25 percent between the first and second years of scanner operation. Therefore, during its first year of operation, it should increase its present utilization rate of 1,220 scans per year to 1,525 scans per year. At that point it would be under utilized to the extent of 515 scans per year which far from accommodates the projected needs of Osteopathic General Hospital, the Petitioner. Figures for 1976, showing the actual use by the nine (9) machines range from a low yearly total of 1,220 to over 3,000. The average annual use per scanner is approximately 2,358 scans. The total number of scans in the area for the calendar year 1976, was approximately 18,864. As of the date of the hearing, Respondent had not developed a position as to guidelines for criteria against which CAT Scanner applications would be reviewed. However, a proposal for such guidelines issued from the office of Community Medical Facilities of the Respondent, Department of Health and Rehabilitative Services on February 21, 1977. The guidelines suggest that community need would be established by a demonstration that other existent CAT Scanners in the same HSA area are being utilized at a minimum of 70 percent level or 1,456 scans per year. A standard which the Respondent accepts is that each CAT Scanner in a particular health system agency area must operate at 85 percent of its capacity. Capacity is determined to be 2,400 patients per year which when multiplied by 85 percent equals a standard of 2,040 scans per year. The HSA uses as a part of its planning criteria the estimate that from 3 to 10 percent of the given population can expect to be scanned in a year. The Dade-Monroe population projected for 1980 is 1,650,000 which would generate an annual patient count between 49,000 and 165,000. Assuming a utilization rate of 2,500 scans per year, between 19 and 64 scanners would be required in the community to accommodate the demand. Petitioner's projected use of the CAT scanner is 2,094 procedures annually. This figure does not include additional procedures incurred by virtue of the participation of Westchester General Hospital, the other osteopathic facility in the Dade-Monroe area. Petitioner projects that the cost per scan to be charged by its facility will be $250.00, which includes both the hospital and physician fee. Frequently, the use of the CAT Scanner will obviate the requirement of one or more alternative procedures which may entail more cost to the patient and higher morbidity. There is a waiting time of at least one to two days for ambulatory or inpatient referral from another hospital to one in which scanners are currently located, Inpatient delay, however, is either nonexistent or significantly less in those same institutions. Petitioner does not refer its patients to those facilities having a utilization rate of below 2,040 per year. The installation of a CAT Scanner in Petitioner's facility would result in a substantial saving in cost in many cases by reducing the length of hospital stay, the number of diagnostic procedures employed and elimination of transportation costs to other facilities. The Department of Health, Education and Welfare has established as a guideline for the development of health systems plans that a consumer demand for osteopathic services should be considered by the HSA in light of availability of osteopathic facilities to osteopathic physicians and patients. The Bureau of Health Planning and Resources Development of HEW is sensitive to the possibility of osteopathic concern being either slighted or ignored in many health care settings. The Secretary of HEW, because of his concern about discrimination against populations who wish to be served by osteopathic services and facilities in their communities, strongly encourages State agencies and HSA's to incorporate consideration of the needs of the population being served by such services and to their health plans. There is a definite segment of the population in the Dade-Monroe County area which uses exclusively osteopathic physicians for their medical needs. However, there is no CAT Scanner within the Dade-Monroe area which is either owned or operated by an osteopathic facility. All CAT Scanners within the area are operated by allopathic physicians or facilities.
Recommendation Based upon these findings of fact and conclusions of law, it is recommended that Respondent's unfavorable recommendation to the Department of Health, Education and Welfare be reversed. DONE and ENTERED this 19 day of August, 1977, in Tallahassee, Florida. MICHAEL R.N. McDONNELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Eric Haugdahl, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Sheldon M. Simons, Esquire Professional Building 3661 South Miami Avenue Miami, Florida 33133
The Issue Whether Respondent's B license to practice veterinary medicine in the State of Florida should be suspended, revoked, or otherwise disciplined for the reasons set forth in the Administrative Complaints filed in the above-styled consolidated cases.
Findings Of Fact Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, is the agency of the State of Florida vested with statutory authority for instituting disciplinary proceedings to enforce the provisions of Chapter 474, Florida Statutes, governing the practice of veterinary medicine. Respondent, MARIANNE T. KEIM, D.V.M., is, and at all times material hereto has been, a licensed veterinarian in the State of Florida, holding license number VM 0005113. Findings as to Case No. 95-324 On May 31, 1994, Mrs. Julie Panatela presented her six-month old female canine named Godly to Respondent's clinic in Tampa, Florida, for the purpose of having a spay procedure performed. Godly is a mixed-breed dog of primarily golden retriever parentage. Mrs. Panatela left Godly at Respondent's clinic at approximately 8:30 a.m. At that time Godly was in good health, and had no prior surgical procedures. On June 1, 1994, Respondent performed a spay procedure on Godly. Respondent was assisted during the surgery by Lori Burden, a veterinary assistant employed by Respondent. There were no gauze sponges present in the dog's abdomen when Respondent opened the body to perform the spay procedure. A canine spay procedure, an ovariohysterectomy, is the surgical removal of the dog's uterus and both ovaries. The procedure requires the dog to be placed under a general anesthesia. A sterile prep scrub is done. An incision is made in the abdomen below the umbilicus. In removing an ovary, clamps are placed on the ovarian pedicle to compress the tissue so that ligatures, i.e. sutures, may be tightly applied to the area. The purpose of this procedure is to close the blood supply so that the ovary may be removed. Similarly a clamp and ligatures are applied to the uterine body so that the organ may be removed. After removal of the uterus and ovaries, the abdomen is closed, usually in three layers. First the ventral midline, linea alba, is closed, then the subcutaneous layer, and finally the skin. There is little bleeding associated with this procedure. While there may be some seepage, only a few tablespoons of fluid is normal. Prudent veterinary practice requires the counting of sponges during a surgical procedure. Respondent has performed hundreds of canine spay procedures. It is Respondent's normal practice to always hold sponges in her fingers during surgery, and not to place sponges unattached inside an animal's body. As a routine practice Respondent's employed assistants are instructed to count sponges during any surgical procedure. On June 1, 1994, Lori Burden was the veterinary assistant responsible for counting sponges during the spay procedure Respondent performed on Godly. Six sponges were used during the procedure, four while inside the dog, and two during closing. Ms. Burden believed the sponge count to be accurate, and that all sponges were accounted for, and properly disposed of after Respondent completed the spay procedure. On the afternoon of June 1, 1994, Mrs. Panchal's husband, Raja Panatela, picked Godly up from Respondent's clinic and took the dog home. The Panchals observed that Godly was very lethargic, unusually inactive, and had difficulty going to the bathroom. Additionally, the Panchals observed about a quarter of a cup of pinkish fluid draining from the incision site. Goldie's condition continued to deteriorate that evening. More fluid was draining from the incision, and the dog was increasingly listless. The Panchals became extremely concerned about Goldie's worsening condition, and on the next day, June 2, 1994, Mr. Panatela returned with Godly to Respondent's clinic. Mr. Panatela reported to Respondent his observations, and expressed his concerns regarding Goldie's condition. Respondent examined the incision and stated to Mr. Panatela that it looked fine. Respondent did not diagnose any significant problems with Godly, and placed a belly wrap around the dog's abdomen to absorb any seepage. Mr. Panatela returned home with Godly. During the evening Goldie's condition continued to worsen. The dog remained listless and more fluid was discharging from the incision. The next morning, June 3, 1994, Mrs. Panatela discussed the dog's condition with her neighbor. Later that morning, at her neighbor's suggestion, the Panchals presented Godly to G. Brooks Buck, D.V.M., a veterinarian operating a clinic in Valrico, Florida. The Panchals informed Dr. Buck that Godly had been spayed on June 1, 1994, and that since the procedure was performed the dog had been abnormally listless, had difficulty going to the bathroom, and that significant amounts of fluid were discharging from the incision site. The Panchals did not inform Dr. Buck at this time that Respondent had performed the spay procedure on Godly. Dr. Buck's initial observation of the incision site revealed no problems, and the skin incision appeared well sutured; however, when Dr. Buck picked Godly up to place her on the floor a large amount of fluid, approximately one-half cup, discharged from the incision site. Dr. Buck then became very concerned, and recommended to the Panchals that the incision be reopened so that he could determine the cause of the fluid discharge. The Panchals agreed, and on June 3, 1994, Dr. Buck reopened the incision. During his surgery, Dr. Buck found no signs that the subcutaneous tissue layer had been sutured. Dr. Buck further observed that two-thirds of the caudal layer incision through the abdominal wall had been sutured with chromic catgut and steel; however, the final third of the caudal layer incision showed no sign of having been sutured. Dr. Buck observed fluid leaking through the unsutured portion of the caudal incision into the abdominal cavity. Inside the abdominal cavity Dr. Buck observed that the omentum appeared red and irritated, as did the peritoneal wall. Dr. Buck also observed a wad-like mass within the abdominal cavity which, upon closer inspection, he discovered to be a surgical sponge that had become surrounded by the omentum. Dr. Buck cut the retained sponge from the omentum and removed the sponge from the dog's abdomen. After removing the retained sponge, Dr. Buck further observed that the ovarian and uterine stumps were irritated, and that the right ovarian stump was leaking blood from a nicked artery. Dr. Buck sutured the ovarian and uterine stumps, as well as all three layers of incision, and discharged Godly. Godly recovered from Dr. Buck's surgery without further complications, and on June 13, 1994, Dr. Buck removed the sutures. Godly is now in good health. It is standard veterinary practice to count sponges before and after surgery. It is standard veterinary practice in a canine spay procedure to suture the subcutaneous layer of incision. It is standard veterinary practice in a canine spay procedure to completely suture the linea alba incision. Excessive discharge of fluid after a canine spay procedure indicates an abnormality. It is standard veterinary practice to recognize that excessive fluid discharge after a canine spay procedure indicates an abnormality and requires treatment. Findings as to Case No. 95-327 On Wednesday, July 27, 1994, Mrs. Nan Sherwood presented her cat, Mollie, to Respondent's clinic. Mrs. Sherwood informed the clinic staff that Mollie was acting unusually shy and had no appetite. At this time Mrs. Sherwood did not see or speak with Respondent. Mrs. Sherwood left Mollie at Respondent's clinic for treatment. Mrs. Sherwood was very concerned about Mollie's condition. When Mrs. Sherwood had not received any information from Respondent, she returned to Respondent's clinic on Friday, July 29, 1994. Mrs. Sherwood saw Mollie, observed that the cat's condition had worsened, and requested to speak to Respondent. A clinic staff technician told Mrs. Sherwood that Respondent would contact her later. Respondent did not, however, contact Mrs. Sherwood. When Mrs. Sherwood did not hear from Respondent, she placed a call to Respondent's emergency telephone number on the evening of July 29, 1994. Mrs. Sherwood did not hear from Respondent that evening. The next morning, Saturday, July 30, 1994, Respondent telephoned Mrs. Sherwood and informed her that the cat was being administered fluids, that diagnostic tests on Mollie were being conducted, and stated that she would call Mrs. Sherwood again on Sunday, July 31, 1994, between 11:00 a.m. and 1:00 p.m. On Saturday night, July 30, 1994, Respondent returned to her clinic and examined Mollie. At approximately 11:30 p.m., while Respondent was examining Mollie on the examination table, the cat died. The cause of death was advanced kidney disease and diabetes. The medical therapy administered by Respondent to Mrs. Sherwood's cat, Mollie, met acceptable standards of veterinary practice. After the cat's death, Respondent had the cat's body placed in the freezer at her clinic along with other animal remains scheduled for cremation. Due to a personal emergency, Respondent did not place a call to Mrs. Sherwood until after 3:00 p.m. on Sunday, July 31, 1994. At this time Mrs. Sherwood was in the shower, and her husband, Robert Sherwood, answered the telephone. Respondent informed Mr. Sherwood that the cat had died. Mr. Sherwood was very concerned that Respondent had been unresponsive to his wife and had failed to inform them in a timelier manner that the cat had died. Respondent asked Mr. Sherwood about the disposal of the cat's remains, and Mr. Sherwood informed Respondent that his wife would contact her later. Mr. Sherwood did not authorize cremation of the cat's remains. On Monday, August 1, 1994, Mrs. Sherwood spoke by telephone with Respondent. Mrs. Sherwood was interested in understanding the cause of her cat's death and why Respondent had not notified her earlier regarding the cat's death. Respondent told Mrs. Sherwood about her personal problems which had occurred on the weekend. Mrs. Sherwood was not satisfied with this explanation, but told Respondent she would come by for Mollie's body. Mrs. Sherwood did not authorize cremation of Mollie's body. On Wednesday, August 3, 1994, Mrs. Sherwood again spoke with Respondent by telephone. Mrs. Sherwood told Respondent she was coming to Respondent's clinic to pick up Mollie's body. At this time Respondent told Mrs. Sherwood that the cat's body had probably been taken on Tuesday for cremation, and that Mrs. Sherwood could come later to pick up the ashes. At this point Mrs. Sherwood became extremely upset because she had not authorized cremation of Mollie's remains. Mrs. Sherwood then called the offices of Petitioner to inform the Department of the circumstances surrounding Respondent's actions in regard to the death of Mollie. That same day, August 3, 1994, Mrs. Sherwood went to the Petitioner's office in Brandon, Florida, met with Diane Gusset, an agency investigator, and filed a statement detailing these events. Mrs. Sherwood also signed a form for Ms. Gusset authorizing the release of Mollie's records, as well as Mollie's remains, if still on the clinic premises. On Thursday, August 4, 1994, at approximately 10:00 a.m., Ms. Gusset, accompanied by Dennis Force, also an agency investigator, went to Respondent's clinic for the purpose of retrieving the records of Mrs. Sherwood's cat, and the cat's remains if on the premises. Upon arrival at the clinic, Investigator Force identified himself and Ms. Gusset to Respondent's staff as officials of the Department and requested access to the clinic. The staff went to inform Respondent about the presence of the Department investigators. During this time, the Department investigators proceeded into the clinic. Ms. Gusset entered the surgery area where Respondent was performing surgery. Ms. Gusset asked for the Sherwood records, but Respondent informed her the records were not on the premises. While inside the clinic, the investigators observed that the kennels had not been recently cleaned, and dogs in the outside kennels needed water. The investigators also saw eight containers of medication which appeared out of date; however, the medication containers contained small amounts of medicine, and there is no evidence that Respondent administered out-of-date medication. One container of hydrogen peroxide which appeared out of date was actually a reusable container. Ms. Gusset and Mr. Force also discovered the remains of Mrs. Sherwood's cat, Mollie, in the freezer at Respondent's clinic. By this time Respondent had contacted her attorney who requested Ms. Gusset and Mr. Force leave the clinic premises. After consulting with the Department's attorney, the investigators left the clinic. Respondent's clinic staff regularly cleans the premises. On the morning of August 4, 1994, when the Department investigators arrived, the clinic staff was in the process of, but had not yet completed, the cleaning of the kennel area. Respondent has instituted procedures in her clinic to monitor the dispensing of medications, and to update the effective dates of medications administered. There is no evidence Respondent administered outdated medication.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Veterinary Medicine enter a final order in DOAH Case No. 95-0324 suspending Respondent's license to practice veterinary medicine for a period of six months, placing Respondent on probation for a period of two years under supervised practice, imposing a fine of $1000, and requiring Respondent to attend additional continuing education courses in organizational skills, and veterinary medical therapy. It is further recommended that the Board of Veterinary Medicine enter a final order in DOAH Case No. 95-0327 dismissing the Administrative Complaint. RECOMMENDED this 17th day of January, 1997, in Tallahassee, Florida. Hearings Hearings RICHARD HIXSON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 17th day of January, 1997. COPIES FURNISHED: Miriam S. Wilkinson, Esquire James Manning, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael J. Kinney, Esquire KINNEY, FERNANDEZ and BOIRE, P.A. Post Office Box 18055 Tampa, Florida 33679 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Susan Foster, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent raced a horse that was impermissibly medicated in violation of section 550.2415(1)(a), Florida Statutes (2015), and implementing administrative rules1/ as alleged in the Amended Administrative Complaint; and, if so, what sanction is appropriate.
Findings Of Fact The Division is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes. At all times material, Ms. Pompay held a pari-mutuel wagering professional individual occupational license, number 1001817-1021, issued by the Division. At all times material, Ms. Pompay was subject to chapter 550 and the implementing rules in Florida Administrative Code Chapter 61D. Under section 550.2415(1)(a), an animal that has been impermissibly medicated or determined to have a prohibited substance present may not be raced. It is a violation of the statute for a person to impermissibly medicate a horse which results in a positive test for such medications based on samples taken immediately after the race. Rule 61D-6.002(1) provides: "[t]he trainer of record shall be responsible for and be the absolute insurer of the condition of the horses . . . he/she enters to race." Ms. Pompay was the trainer of record for the horse named R Bling Shines who raced at Gulfstream Park on February 20, 2016. R Bling Shines won her race and was then sent to the Division-operated equine detention barn for the taking of urine, blood or other such samples pursuant to rule 61D-6.005. The equine detention barn is the site at each licensed racetrack in Florida where employees of the Division obtain urine and blood samples from racehorses. Ms. Pompay was the trainer of record for the horse named Run Saichi who raced at Gulfstream Park on May 13, 2016. Run Saichi finished second in his race and was then sent to the Division-operated equine detention barn for the taking of urine, blood or other such samples pursuant to rule 61D-6.005. Rule 61D-6.005, entitled "Procedures for Collecting Samples from Racing Animals" was in effect when R Bling Shines and Run Saichi were sent to the equine detention barn for the collection of "urine, blood or other such samples" as authorized by the rule. The term "other such samples," as used in the rule, means hair and saliva. The rule does not refer to the "processing" of whole blood samples into blood serum. The University of Florida Laboratory determined that the post-race blood sample taken from R Bling Shines tested positive for a blood serum overage of the permitted medication "betamethasone." The University of Florida Laboratory determined that the post-race blood sample taken from Run Saichi tested positive for a blood serum overage of the permitted medication "mepivicaine." On February 20, 2016, the Equine Detention Barn Procedures Manual (2010 Manual) was in effect for all equine detention barn facilities. The 2010 Manual was in effect between June 2010 and April 7, 2016. At the time the 2010 Manual became effective, rule 61D-6.005 (2001) was in effect. On November 25, 2015, the Recommended Order issued in Case No. 15-5037 concluded that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division and that pursuant to section 120.57(1)(e)1., Florida Statutes, the Division could not base agency action on blood serum samples obtained pursuant to it. On January 11, 2016, the director of the Division issued a Final Order finding that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division. On December 15, 2015, the Recommended Order issued in consolidated Case Nos. 14-4716 and 15-2326 concluded that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division and that pursuant to section 120.57(1)(e)1. the Division could not base agency action on blood serum samples obtained pursuant to the unadopted rule. On January 11, 2016, the director of the Division issued a Final Order finding that subsection 4.6 of the 2010 Manual was an unadopted rule of the Division. On April 7, 2016, the 2016 Guidelines were distributed to all equine detention barn facilities to become effective as of that date. The 2016 Guidelines superseded and replaced the 2010 Manual. At the time the 2016 Guidelines became effective, rule 61D-6.005 (2015) was in effect. The 2016 Guidelines were in effect on May 13, 2016, when Run Saichi raced at Gulfstream Park. The 2010 Manual prescribed detailed procedures for collecting blood samples from race horses, spinning the blood in the centrifuge to extract the serum, pouring of the serum into the evergreen tube, sealing of the evergreen tube with evidence tape, and mailing of the specimen to the laboratory for testing. The 2010 Manual was applicable to every horse racing facility within the State of Florida. It had been in effect in its then- current form between 2010 and April 2016 and, by its own terms, was mandatory. It provided that veterinary assistants, chief veterinary assistants, detention barn security guards, and detention barn supervisors "study, become completely familiar with, and put into practice" the procedures outlined in the 2010 Manual. It described seven steps in chain-of-custody procedures, three of which are "collecting the specimen, sealing the specimen, and completing the required forms," and described detailed procedures in this "strict sequence of events that must be followed." The 2016 Guidelines do not prescribe the detailed procedures for collecting blood samples from racehorses, spinning the blood in the centrifuge to extract the serum, pouring of the serum into the evergreen tube, sealing of the evergreen tube with evidence tape, freezing the sample and mailing of the specimen to the laboratory for testing. However, since the date the 2016 Guidelines were put into effect, the procedures followed by Division employees in the testing barn for the processing of the whole blood into blood serum, the pouring of the serum into the evergreen tube, the sealing of the tube with evidence tape, the freezing of the sample and the mailing of the specimen to the laboratory have been the same as those prescribed by the 2010 Manual. At the time of the implementation of the 2016 Guidelines, there were no "established procedures pursuant to applicable law and administrative rule" to process whole blood into blood serum other than the procedures set forth in subsection 4.6 of the 2010 Manual. In addition, at the time of the implementation of the 2016 Guidelines, there were no "testing laboratory SOPs" or "protocols" in place for detention barn personnel to follow. According to the laboratory director, the laboratory’s SOPs and protocols do not begin to operate until the moment the samples arrive at the laboratory in Gainesville. The Division published the 2010 Manual under the direction of its deputy director and distributed it to every employee who worked at a detention barn, including the state veterinarian, the chief veterinary assistant, other veterinary assistants, detention barn security guards, and detention barn supervisors. The 2010 Manual was not made available to the general public unless a copy was requested as a public record. The 2010 Manual was an official publication of the Division used at all horse racing facilities in the State of Florida and was last updated on June 25, 2010. During the approximate six-year period that the 2010 Manual was in effect, not one owner’s witness went to the detention barn at the end of the racing day to observe the pouring of blood serum from the blood tubes into the evergreen tube. The Division published the 2016 Guidelines under the direction of its deputy director and distributed it to every employee that worked at a detention barn, including the state veterinarian, the chief veterinary assistant, other veterinary assistants, detention barn security guards, and detention barn supervisors. The 2016 Guidelines were not made available to the general public unless a copy was requested as a public record. Since the 2016 Guidelines took effect, not one owner’s witness has gone to the detention barn at the end of the racing day to observe the pouring of blood serum from the blood tubes into the evergreen tube. The Division uses various forms in connection with blood and urine sampling. The forms catalog the specimens and, if the procedures set forth in the 2010 Manual and the 2016 Guidelines are followed, demonstrate that the horse was in the testing barn at the time the blood and urine samples were taken. The Division’s Form RL 173-3 is a self-adhesive sequentially numbered bar-coded, three-part form (blood label, urine label and card) provided by the University of Florida Racing Laboratory used to catalog specimens by assigning them "Specimen Numbers." As specimens are collected, information regarding the animal from which the sample was collected is written on the bottom of this form. The top two portions of the form (blood, urine) are completed with the Track Number and Collection Date. The applicable top portions of the form are then separated and applied to the urine specimen cup and/or evergreen blood tube. The bottom portion, or Specimen Card is completed, appropriately signed, and sent to the Tallahassee Office of Operations to be filed. The sample tag thus consists of three portions: the numbered portion designated for the blood specimen (blood label), the numbered portion designated for the urine specimen (urine label), and the numbered portion containing information about the animal and trainer that was required to be signed by the witness (card) under rule 61D-6.005 (2001) and "may" be signed by the witness under rule 61D-6.005 (2015). In the sampling procedures followed in this case, the blood labels were not affixed to the collection tubes. The blood labels, from which the card portion was "detached," were affixed to the evergreen blood tubes. This was consistent with the governing rule, as well as the 2010 Manual. The evergreen tube is the specimen container for the serum. The sampling procedures followed on February 20, 2016, were in compliance with the procedures set forth in the 2010 Manual. The sampling procedures followed on May 13, 2016, were the same as those followed on February 20, 2016. As stated in subsection 4.4 of the 2010 Manual, "[s]ealing the sample ensures the specimen does not spill during shipment to the laboratory and assures all parties that the sample has not been tampered with" between the time the sample is sealed at the detention barn and the time the sample is received by the University of Florida Laboratory. The same purposes are served by sealing the serum specimen. The procedures prescribed in the 2010 Manual for the collection of whole blood and the processing of the whole blood into serum were followed when the blood samples from the horses trained by Ms. Pompay were taken on February 20, 2016, and May 13, 2016. After the blood was centrifuged, and the serum was poured into the evergreen tube, the serum was sealed with evidence tape, as described in subsection 4.6 of the 2010 Manual, and the chief veterinary assistant put his initials over the seal. This constituted "sealing" of the specimen in its container. Subsection 4.6 of the 2010 Manual provided: Serum is poured into applicable (numbered) "evergreen" tubes. Each "evergreen" tube is immediately properly sealed with evidence tape. The opening of the blood tubes, the pouring of the serum from the blood tubes into the evergreen tube, and the sealing of the evergreen tube was witnessed by two Division employees: a chief veterinary assistant or detention barn supervisor who pours the serum from the blood tubes to the evergreen tubes and another employee who observes the process. In the proposed recommended orders referred to in paragraphs 14 and 15 above, a specific finding of fact was made that the 2001 version of rule 61D-6.005 did not make reference to spinning the blood in the centrifuge to extract serum, the pouring of serum into an evergreen tube, the sealing of the evergreen tube with evidence tape or the freezing of the specimen. The state veterinarian who took the blood sample from R Bling Shines and Run Saichi signed PMW Form 504, a Daily Record of Sample Collection, indicating that this was done. After centrifuging the whole blood in the collection tubes, at the end of the day the state veterinarian usually leaves the collection tubes with the chief veterinary assistant, who pours the separated serum from each collection tube into the correspondingly numbered evergreen container and seals it (under the observation of another detention barn employee). Sometimes, the state veterinarian stays to observe the transfer of the serum to the evergreen specimen container. There is no signature indicating the time the state veterinarian leaves the samples at the detention barn or the time the chief veterinary assistant opens the collection tubes and transfers the serum. In each instance of sampling in this case, the owner's witness signed the card portion of the sample tag (Form RL 172- 03) after the taking of the urine and blood samples. In fact, since the change in rule 61D-6.005 in June 2015, no owner’s witness has refused to sign the sample tag. In each instance of sampling in this case, the owner's witness signed the card portion of the sample tag (Form RL 172- 03) after the sealing of the urine specimen in its container, but before the whole blood was processed into blood serum, the blood serum was poured into the serum container, and the serum container was sealed. The pouring of the collection tubes into specimen containers takes place at the end of the racing day, after all of the horses have departed from the detention barn. It would be very inconvenient for an authorized witness to remain until the serum specimens were sealed. The sampling procedures set forth in the 2010 Manual and the sampling procedures in use under the 2016 Guidelines are important to the Division, to the trainers, and to the public. These sampling procedures affect the substantive rights of the trainers as they are the "absolute insurer" of the horse’s condition when it races. The centrifuging process, extraction of the serum, and sealing of the serum specimen as described in detail in subsection 4.6 of the 2010 Manual were never discussed at a rule-making hearing. These procedures are not part of rule 61D- 6.005, adopted in 2001, nor are they part of rule 61D-6.005 as amended in 2015. Until it was superseded by the 2016 Guidelines, the 2010 Manual applied to every state-licensed horse racing facility in the State of Florida. It was a policy attributable to the Division. Amendments to rule 61D-6.005, effective June 15, 2015, to eliminate all references to the sealing of the blood serum specimen, left the 2010 Manual provisions establishing policy on extracting and sealing the serum specimen without support in statute or adopted rule. After the amendments to the rule, the provisions of the 2010 Manual requiring extraction and sealing of the serum specimen were generally applicable Division policy that created rights important to a trainer. These provisions constituted an unadopted rule. The established procedures pursuant to applicable law and administrative rule referenced by the 2016 Guidelines, which Division employees are required to follow, are the procedures that were set forth in the 2010 Manual. These procedures for the processing of the whole blood into blood serum, the pouring of the serum into the evergreen tube, the sealing of the tube with evidence tape, the freezing of the sample, and the mailing of the specimen to the laboratory survive as de facto policies of the Division notwithstanding the "repeal" of the 2010 Manual. The de facto Division policy regarding extraction and sealing of serum specimens affect rights important to trainers and has the direct and consistent effect of law. Division employees do not have the discretion not to follow the de facto Division policy regarding extraction and sealing of serum specimens. The de facto Division policy regarding extraction and sealing of serum specimens constitutes an unadopted rule.
