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 The cause was initiated upon the filing of a Petition for Award of Attorney’s Fees and Costs, pursuant to Florida Statutes 57.111. A formal hearing was originally scheduled for Gainesville, Florida, however, pursuant to agreement of the parties it was dispensed with. The parties stipulated to the record to be considered in this proceeding, agreeing upon exhibits and upon a time period for submission of proposed final orders. The appearances were as follows.
Findings Of Fact The Petitioner, Samy H. Helmy, was a licensed veterinarian in the State of Florida at all times pertinent hereto. The license was suspended by Final Order of the Board of Veterinary Medicine on or about August 3, 1990 and the suspension was upheld on appeal. That Final Order became a Final Decision upon the Court’s Mandate and Notice issued on December 26, 1991. On or about February 21, 1992 Mr. Henry Scheid, in his capacity as an investigator for the Department of Business and Professional Regulation, Board of Veterinary Medicine, (DBPR) set up a “sting operation” in which he attempted to apprehend the Petitioner in activities which could be construed as unlawfully practicing veterinary medicine with a suspended license. Mr. Scheid’s investigative report is an exhibit by stipulation in this proceeding. Mr. Scheid acknowledges in this report that another person, Dr. S. Strahler was present on the Petitioner’s veterinarian practice premises at the time he made his investigation. Mr. Scheid also recounts in his investigative report that although the Petitioner examined the animal which was involved in the sting operation, when it became necessary to give an injection to the animal, an employee of the veterinary practice who proved to be Dr. Strahler, was called in to actually perform the injection. It does appear that the investigator, Mr. Scheid, was aware that a licensed veterinarian was practicing on the premises. He would thus seem to have been aware that Dr. Strahler may have been in a position to supervise Dr. Helmy’s practice under his suspended license. However, there is also contained in the investigative report a statement by the investigator to the effect that he interviewed Dr. Strahler. Dr. Strahler indicated that he had only worked on Dr. Helmy’s premises for several days in February 1992 and that indeed, Dr. Helmy had performed surgeries without Dr. Strahler’s assistance, which could reasonably be interpreted by Mr. Scheid that Dr. Helmy might have been performing veterinary practice in an unsupervised way. In the investigator’s report, page 10, reference is made to his interview with RFS (Dr. Strahler) as follows: “On February 27, 1992 investigator made phone contact with RFS. He advised he had only worked for subject; February 14, 1992, Friday, all day; February 15, 1992, Saturday, one-half day; and February 21, 1992, Friday, all day. During questioning RFS, with hesitation, did advise that subject was conducting surgeries, with or without RFS assistance. Further advised, he would cooperate as the last day he worked subject, he found out that subject’s license was suspended. After contacting investigator Sowder, Marion County Sheriff’s Office, a meeting with State Attorney for a sworn statement was set for March 4, 1992, at 2:00 p.m.” There are a number of interviews of animal owners who took their animals to Dr. Helmy, for examination and/or treatment. Descriptions of these interviews are recounted in the investigator’s report. The results of those interviews indicate that Dr. Helmy, was performing veterinary practice in terms of diagnosing, taking blood samples, and performing various aspects of treatment. (See the Respondent’s proposed Findings of Fact numbers six through sixteen, adopted here by reference). Although Dr. Helmy, could perform veterinary practice. under the statute cited below, so long as he was supervised by a duly licensed veterinarian in good standing with the Board, the interview of Dr. Strahler (“RFS”) indicates that indeed he may have been practicing without any supervision on some occasions. The important point is that the investigator had sufficient investigative facts to have a good faith belief that he had discovered the Petitioner, practicing with a suspended license, without proper supervision by a duly licensed veterinarian on the premises. He could thus reasonable conclude then that the Petitioner was not in compliance with the statute concerning supervision cited below. After his visits to the premises and contact with law enforcement authorities, Mr. Scheid filed the subject report on approximately April 19, 1992. Thereafter, the investigation apparently remained an open or active investigation, but as far as the evidence in this case shows, no administrative complaint was filed for a substantial period of time. In fact, on September 10, 1993 Nancy M. Snurkowski as chief attorney for the agency signed a document called a “Closing Order” on behalf of George Stuart, Secretary of the Department. That Closing Order indicates that the complainant, the agency, had alleged that the subject, Dr. Helmy, had violated Sections 474.213(1)(f) and 474.215(3), Florida Statutes (1991) for operating a veterinary establishment when the responsible veterinarian’s license had been suspended, or by knowingly employing an unlicensed person or persons in the practice of veterinary medicine. The Closing Order implies that the investigation substantiated the complaint in that the subject was a veterinary establishment operated by Dr. Helmy when his license to practice had been suspended. The Closing Order accounts that he continued to practice despite that suspension. The Closing Order states that he continued to practice despite that suspension. The Closing Order also states that: “[T]he establishment now lists Robert F. Strahler, DVM as a responsible veterinarian. Robert F. Strahler, DVM is a Florida-licensed veterinarian in good standing with an active license. He acquired the facility and premises permit number of VE0002026 on August 27, 1992. The previous permit number VE0001793 is no longer valid.” “The law: “Based on the foregoing, probable cause does exist at this time to believe that the subject was in operation while its responsible veterinarian’s license was suspended and it employed unlicensed individuals in the practice of veterinary medicine. However, since the unlicensed activity has been stopped and the responsible veterinarian holds a valid active license in good standing, this case will be closed.” Thus on September 16, 1993 apparently the agency elected to terminate the prosecution with this “Closing Order”. The agency however, does not admit in that Closing Order that probable cause to believe that unauthorized veterinary practice done by the Petitioner did not exist. Rather, it merely indicates that, since the investigation was commenced, Dr. Strahler had become a licensed supervising veterinarian, or a “responsible veterinarian” in good standing for the establishment. Therefore the violation previously believed to have been found by Mr. Scheid had been alleviated at that point. That Closing Order appears to have been merely the determination of the investigation at that point. The evidence before the Administrative Law Judge does not actually indicate that a formal administrative complaint, based upon a probable cause finding by the Board, had been made at that time or previously. Nevertheless, in a probable cause panel meeting of November 30, 1993 (by telephone conference call) (the transcript of which is stipulated into evidence in this proceeding as Exhibit 3) probable cause to file an proceed on the administrative complaint which gave rise to this case was found by the Board of Veterinary Medicine. This may seem a harsh determination, since the Chief Attorney with the Board had recommended terminating the prosecution prior to that probable cause finding. However, the investigative report and related documents indicate that there was adequate reason to believe that unauthorized veterinary practice by Dr. Helmy had been conducted on the premises on and around the time when Mr. Scheid made his visitor visits to the premises and interviews of customers and others. Thereafter, prosecution of the administrative complaint proceeded, (albeit slowly). Thus the Board litigated this case in 1993 until 1996. There is no question with attorney’s fees and costs were incurred by the Respondent (Dr. Helmy) in that administrative complaint case during that time. In fact, there is no dispute about the reasonableness of the fees and costs claimed in this proceeding. After attempting to conduct a hearing, but after at least one continuance, and before the case proceeded to formal hearing, the complaint was voluntarily dismissed by the prosecuting agency on June 5, 1996. Dr. Helmy made no admissions or agreements at any time to prompt the Department of file the motion for dismissal on the basis of a negotiated settlement. A related criminal case was proceeding during 1992 through 1994 in the Fifth Judicial Circuit for Marion County Florida. Dr. Helmy was being prosecuted by the State based upon the same set of factual circumstances developed by Investigator Scheid. A Motion to Dismiss was filed by defense counsel in that case and the Circuit Court granted that motion based upon an undisputed set of facts which are the same underlying facts that gave rise to the administrative complaint in the formal proceeding underlying this attorney’s fee case. The circuit judge in that proceeding dismissed the criminal case against Dr. Helmy on January 27, 1995, finding that Dr. Helmy was providing supporting assistance under the supervision of responsible, duly- licensed veterinarian, who acted as a responsible veterinarian as defined by Chapter 474 Florida Statutes. The Circuit Judge found that the Petitioner’s actions at the times pertinent to the criminal proceeding and the administrative prosecution were lawful since they were done under the supervision of a duly- licensed, active practicing veterinarian. The Administrative Law Judge ruled upon the Motion to Dismiss, and a subsequent motion, which raised the issues of collateral estoppel Res Judicata made by Dr. Helmy’s attorney in the formal proceeding underlying this attorney’s fee case. It was thus determined that the principals of collateral estopped and Res Judicata did not apply due to lack of mutuality of parties, etc. Accordingly, the administrative proceeding continued to remain active for sometime until the agency, on its own motion, voluntarily dismissed the matter on June 5, 1996. It is true as Petitioner contends, that a deputy sheriff from Marion County, as well as Mr. Scheid, testified by deposition that their opinions concerning Dr. Helmy’s guilt of unauthorized practice of veterinary medicine would be different if they assumed that his actions were performed under the immediate supervision of a licensed veterinarian. Dr. Gary Ellison, an expert witness for the Department in the Helmy case acknowledged, in his deposition, essentially the same thing that if “everything in the complaint” had been done under the immediate supervision of a licensed veterinarian then Dr. Helmy would not have broken the law. The fact remains, however, that at the time the investigation was commenced and Mr. Scheid conducted his interviews and conducted his operation on the then Respondent, Dr. Helmy premises, he had a reasonable belief that a violation had taken place. His conversation with Dr. Strahler himself could give him a good-faith belief that Dr. Strahler indeed did not truly supervise Dr. Helmy. Thus, the Board, at the time probable cause was found in the administrative complaint was filed, had a reasonable basis in fact and in law to proceed against Dr. Helmy, even if it was later determined that in fact, his practice on those premises had been lawful. While it may seem unduly harsh for the Board to find probable cause after its chief attorney had recommended closing of the investigation, the fact remains that, at the time probable cause was found there was substantial justification for the Board to believe that unauthorized veterinary practice had been conducted by the Petitioner on the premises. The language of the “Closing Order” does not obviate such a finding. Finance evidence into this proceeding in the form of Dr. Helmy’s tax returns for 1993 and 1994, as well as other evidence (see Exhibit 12) show that the Petitioner does not have a net worth of more than $2,000,000. The evidence, in its totality also shows that Dr. Helmy was operating a sole proprietorship of a professional practice dispensing veterinary services, at “Highway 200 Animal Hospital” at the time of the initiation of the Board’s action. This is documented in the investigative report and by the registration certificate for the veterinary establishment included in the record of this case as stipulated Exhibit 12. In fact, Dr. Helmy had entered into a business lease for the premises where he located to Highway 200 Animal Hospital with the lease specifying that the premises were to be occupied for a veterinary office, and the lease beginning June 15, 1990 and continuing through June 14, 1995. Thus, at all times pertinent hereto, Dr. Helmy had a lease for a business establishment operating as a veterinary practice from 1990 through 1995. His veterinary practice was not incorporated nor was it a partnership. It can only be inferred from the evidence available that it was a sole proprietorship of Dr. Helmy.
Recommendation Accordingly, having considered the foregoing findings of fact and conclusions of law, the preponderant evidence of record and pleadings and arguments of the parties, it is therefore ORDERED that the petition of Samy Helmy, D.V.M. is denied.DONE AND ORDERED this 6th day of January, 1997, at Tallahassee, Florida. COPIES FURNISHED: Robert A. Rush, Esquire 426 N.E. First Street Gainesville, Florida 32601 James E. Manning, Esquire Department of Business and Professional Regulation P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings 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 Hearings this 6th day of January, 1997. 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Susan Foster Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue is whether Respondent properly denied Petitioner’s application for a license to practice veterinary medicine.
Findings Of Fact Petitioner is a graduate of a foreign school of veterinary medicine. He received a doctorate in veterinary medicine from the National Pedro Henriquez Urenta University, Santo Domingo, Dominican Republic, in 1987. Petitioner filed his first application to take the National Board of Veterinary Medicine Examination (National Board), the Clinical Competency Test (CCT), and the Florida Laws and Rules Examination (Florida Laws and Rules) on February 22, 1988. On or about March 14, 1988, Respondent notified Petitioner that his application was complete. Respondent subsequently certified Petitioner as eligible to take the three tests on May 10-11, 1988. On or about June 29, 1988, Respondent advised Petitioner that he had failed all three tests. On or about July 5, 1990, Petitioner filed a second application to retake the examinations in Florida. Respondent advised Petitioner that his application was outdated on or about July 16, 1990. Respondent directed Petitioner to resubmit his application on the current forms. On or about August 14, 1990, Petitioner filed his application to retake the examinations on the current forms. Respondent notified Petitioner that his application was complete. By notice dated August 17, 1990, Respondent advised Petitioner that he was eligible to take the examinations on December 9-10, 1990. Respondent subsequently informed Petitioner of a change in the dates of examination to December 11-12, 1990. Petitioner took the examinations on December 11-12, 1990 in Florida. On or about February 2, 1991, Petitioner received notice that he had not passed any of the examinations. Petitioner subsequently became aware of a change in Florida law which would prohibit him from becoming licensed to practice veterinary medicine without a certificate from the ECFVG if he failed to pass the examinations three times after October 1, 1989. He decided to apply to take the examinations in Georgia. Petitioner took and failed the National Board in Georgia on the following dates: (a) December, 1992; (b) April, 1993; (c) December, 1993; (d) April, 1994; (e) December, 1994; (f) April; 1995; and (g) December, 1995. He took and passed this test in Georgia in April of 1996. Petitioner took and failed the CCT in Georgia on the following dates: (a) December, 1992; (b) April, 1993; and (c) December, 1993. He took and passed this test in Georgia in April of 1994. Petitioner filed an application for licensure with Respondent on or about August 1, 1996. Item six of this application asks: Have you ever taken the National Board Examination, Clinical Competency Test or Florida Laws and Rules Examination? If yes, list below the name(s) of the exam(s), the date(s) of the exam(s) and the state(s) in which the examination was taken. In response to item six of the application, Petitioner answered as follows: National Board - December, 1990, Florida; April, 1996. Clinical Competency Test - December, 1990, Florida; April, 1994, Georgia. Laws and Rules - December, 1990. On or about August 26, 1996, Respondent informed Petitioner that his application was complete. However, Petitioner was advised that Respondent might deny the application unless Petitioner had completed the ECFVG program because Petitioner had taken the National Board and the CCT more than three times since October of 1989. By letter dated August 28, 1996, Respondent requested the Georgia State Board of Veterinary Medicine to provide written confirmation of Petitioner's examination record in that state. On or about October 28, 1996, the Georgia State Board of Veterinary Medicine certified in writing that Petitioner had taken the National Board a total of eight times and the CCT a total of four times. The Georgia certification listed the dates that the examinations were attempted and finally passed. That same day, Respondent gave Petitioner preliminary notice that his application would be denied. Petitioner had not completed the ECFVG program. Therefore, Respondent issued an Order of Intent to Deny Petitioner's application on or about December 5, 1996. According to his testimony, Petitioner was not aware that he needed to disclose information related to his 1988 Florida exams and his failed exams in Georgia. He was aware that the law, which limited the number of times he could take the exams without earning an ECFVG certificate, would not count exams taken before October 1, 1989. He also asserted a belief that the law would not apply to the number of times he took the exams in another state. Petitioner's testimony is contrary to more persuasive evidence. Petitioner admitted that he read the license application instructions before he filed his 1996 application. These instructions clearly require an applicant to provide Respondent with an examination history including the following information: (a) the name of every prior examination; (b) the date of every prior examination; and (c) the state in which the applicant took every prior examination. The license application instructions and the application admonish applicants to answer all questions fully and truthfully. They warn applicants that obtaining a license by fraudulent misrepresentation is grounds for denial of an application or revocation of a license.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Respondent enter a Final Order denying Petitioner's application for a license to practice veterinary medicine. DONE AND ENTERED this 8th day of July, 1997, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings 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 Hearings this 8th day of July, 1997. COPIES FURNISHED: Edwin A. Bayo, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 I. Mark Rubin, Esquire 2107 Hendricks Avenue Jacksonville, Florida 32207 Sue Foster, Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Charge of Discrimination filed by Petitioner on October 29, 2002.
Findings Of Fact Petitioner is an Hispanic woman who was employed by Respondent from December 1997 until her termination on October 2, 2002. She worked in Alachua County Animal Services (Animal Services) as an animal control officer. Animal Services control officers are supervised by the Animal Services field supervisor who reports to the director of Animal Services. Petitioner received a bachelor's degree in 1983 in agriculture with a concentration in animal production and agricultural management courses, has experience in animal nutritional research, and has one published paper in that field.2/ Prior to working for the Alachua County, Petitioner managed a small pest control business. By the time she applied for the supervisory position, she had obtained Florida Animal Control Association (FACA) Level I, euthanasia, and chemical immobilization certifications. An animal control officer is responsible for enforcing state laws and county ordinances regarding small animals. Animal control officers impound animals at-large, issue warnings and citations, handle citizen complaints, and investigate animal bites and cruelty to animals. Petitioner served as interim Animal Services supervisor for a little over one month in June 2000. When the position of Animal Services field supervisor became vacant in December 2001, Petitioner applied for the job. Penny Lefkowitz, a newly hired Animal Services officer, also applied for the job. At that time, Ms. Lefkowitz had seven years of animal control experience in Arizona as lead officer. In that capacity, she was a sworn officer with firearm authority, a field training officer, and handled over 1,000 calls per year in that position. She held National Animal Control Association (NACA) Level I and II certifications. She was euthanasia- certified and had 25 years' experience breeding dogs and horses. Ms. Lefkowitz has a high school diploma. Ms. Lefkowitz was placed in the interim field supervisor position for a period of approximately three months, during which time she received supervisory pay. The record is not clear whether there was a separate application process for the permanent position following the appointment of the interim supervisor position. In any event, Respondent hired Bill Burris as Animal Services supervisor in March 2002. At the time he applied, Mr. Burris had nine years of animal control experience in Arkansas, where he was the animal control officer and shelter assistant. He held a high school G.E.D. Additionally, he held NACA Level I, II, and III certifications. Petitioner's Charge of Discrimination regarding failure to promote only references Ms. Lefkowitz's appointment to the interim director position, "[i]n December 2001, a newly hired officer, white female with less experience was hired as interim supervisor." It does not reference Mr. Burris as being hired in the director position. Her Petition for Relief alleges, "[t]hose less qualified individuals were hired and promoted in violation of county/company policy." Thus, it is not clear that Respondent hiring Mr. Burris for the permanent position is properly within the scope of this case. Nonetheless, the evidence presented at the hearing regarding Mr. Burris' qualifications is addressed herein. Mr. Burris held the position of field operation supervisor from March 2002 until his resignation in September 2003. Based upon the evidence in the record, at the time the decision was made to place Ms. Lefkowitz in the temporary supervisory position, she and Petitioner met the qualifications for the job. Ms. Lefkowitz had significantly more supervisory and field experience than Petitioner. At the time he was placed in the job, Mr. Burris met the qualifications for the job and had significantly more supervisory experience than Petitioner. Petitioner held a college degree, which neither Ms. Lefkowitz or Mr. Burris had. However, according to Mr. Burris, a college degree was not a minimum requirement of the job, but two years' animal control or animal shelter experience were required. There is nothing in the record to contradict his testimony in this regard. When Mr. Burris became field supervisor, he held a staff meeting and told the animal control officers he supervised that he would start fresh as far as performance and discipline issues. He handed them an empty folder and informed them that he would only consider their past performance if he saw a pattern that caused him to look at past personnel records. Mr. Burris called staff meetings to discuss policies that were not up-to-date or in need of updating. Prior to the staff meeting, Mr. Burris sent a memorandum to the animal control officers informing them that there would be a staff meeting. Officers were expected to attend and were excused only if they were on an emergency call. If an officer was absent from a meeting, Mr. Burris would promptly notify them in memorandum format as to what happened at the meeting. When changes were made in policies or procedures, Mr. Burris would put a copy of the policy changes in every officer's box. Each officer had his or her box where they would receive their mail. Each officer was expected to check that box daily. The boxes were accessible to everyone so that when there was a confidential document, such as payroll information, that document was placed in an envelope and then put in the officer's box. Petitioner's mid-year performance review was due in April 2002, approximately six weeks after Mr. Burris became the supervisor. Petitioner received an overall rating of "exceeded expectation." There are five categories of performance ratings, and "exceeded expectation" is the second highest category. That rating was consistent with ratings Petitioner received from previous supervisors. On April 24, 2002, Mr. Burris held a staff meeting to discuss a new policy regarding issuance of warnings and citations. The new policy required officers to give animal owners in violation of vaccination or licensing requirements 15 days to come into compliance. Previous to this, some officers had given animal owners 30 days to come into compliance. Under extenuating circumstances and upon seeing reasonable attempts to achieve compliance, the officer could extend an owner's deadline by 15 more days. Testimony is conflicting as to whether Petitioner attended this meeting. Petitioner insists she was not at this meeting. Mr. Burris insists that she was and that this issue was discussed in great detail. In any event, Mr. Burris put the new policy in writing a few days after the April 24, 2002, meeting, and the new written policy was given to all the officers. The weight of the evidence establishes that even if Petitioner did not attend the April 24, 2002, meeting, she would have been notified of the policy change shortly thereafter. On April 29, 2002, Petitioner issued a warning to a dog owner, which allowed the dog owner 30 days to achieve compliance with licensing and vaccinations for 24 dogs. According to Petitioner, she considered 30 days to be ample time for the owner to come into compliance. Petitioner maintains that at the time she issued this warning, she was not aware of the change in policy from 30 to 15 days. She acknowledges that Mr. Burris later explained the change in policy to her. It is clear that Mr. Burris informed Petitioner of this policy change and directed her to follow these procedures. In June or July 2002, Mr. Burris designed a policy and procedure manual incorporating all policies and procedures. A manual was issued for each truck used by the animal control officers. On July 31, 2002, Mr. Burris issued a memorandum entitled, "Bite Priority," to the animal control officers. Following a staff meeting where this memorandum was given to the officers, an informal discussion took place around the dispatch area. During this informal discussion, Petitioner questioned Mr. Burris as to whether he had ever read a document called the rabies compendium. Mr. Burris described Petitioner as speaking in a disrespectful, challenging tone. Ms. Lefkowitz witnessed the exchange and described it as disrespectful and condescending.3/ This statement made in front of other officers was inappropriate. The "Bite Priority" memorandum reads, in pertinent part, as follows: All Bites will be priority. Stand-by officers will be required to respond if the bite is after hours during their on-call shift. Bites will not be passed on to the next day. Shifts are 10 hour shifts, not 9 1/2 hours, if you end up working over you are compensated. Officers will not pass calls off to the stand-by person. Priority calls will be taken by Officers during their regular shift. The remainder of the memorandum dealt with off-premise bites. In early August 2002, Mr. Burris decided to "work the roads on a Saturday to take up some of the slack" because the animal control officers were overworked. Late one afternoon, Mr. Burris attempted to reach Petitioner on the radio, but was unable to do so. He asked the dispatcher to contact Petitioner. Petitioner acknowledges that she was contacted by the dispatcher and received Mr. Burris' request to fill up the truck she was driving and to leave the keys and the fuel card on Mr. Burris' desk. Petitioner had already filled up the truck that day in the late morning. She did not fill up the truck again at the end of the day, but described the truck as being seven-eighths full at the end of her shift, after making ten to 12 calls after stopping for fuel. Petitioner believed her actions complied with Mr. Burris' instructions. Mr. Burris described finding the truck the next morning as half-full of gas. Mr. Burris concluded that Petitioner did not follow his instructions. Mr. Burris' conclusion in this regard was not unreasonable. The truck incident gave rise to Mr. Burris' first written warning about her conduct. On August 5, 2002, Mr. Burris issued a memorandum to Petitioner for "failure to follow verbal instruction." The memorandum noted a safety concern in that he was not able to reach Petitioner by radio and his concern that she did not follow his directive. On August 6, 2002, Mr. Burris called Petitioner into his office to discuss the written memorandum. Mr. Burris described Petitioner's behavior when he handed her the memorandum to be disrespectful. As a result, Mr. Burris went to the director's office to explain the circumstances surrounding this incident. This resulted in a meeting in the director's office at which the director, Mr. Burris, and Petitioner were present. Petitioner acknowledges that she made the statement, "I guess one out of a hundred is unacceptable" during this meeting, and that she said it using a sarcastic tone. Later on August 6, 2002, Mr. Burris issued Petitioner another in-house written warning, the subject of which was "improper conduct" about her conduct in the director's office, which read in part: I informed Dr. Caligiuri of Blanca's discourtesy and or improper conduct. I had Blanca meet with me in Dr. Caligiuri's office to discuss her comment and the way in which it was stated. During our conversation in Dr. Caligiuri's office Blanca used mild sarcasm, expressing, "I guess one time out of a hundred is unacceptable" as we discussed the importance of responding to her radio. At this time, I do not want to write this up as a group I #19 Discourtesy to another employee or a Group II #7 Improper conduct which would effect the employees relationship with co-workers. However, if this behavior continues I will be left with no alternative. I know Blanca is capable of doing her job in a professional manner. I only want this as a written documentation of what occurred on this day, to prevent future occurrences of this same behavior. Petitioner refused to sign the August 6, 2002, memorandum. On August 13, 2002, Animal Services received a call about a dog bite at a residence. Animal control officer Jay Butts was dispatched on the call. When he arrived, he saw two or three dogs inside the home, and he could not determine which dog was involved in the reported bite. The owner of the dog was not at home. He left without leaving a written warning because, "I did not have the correct owner or dog, so I didn't know which dog or which owner to leave a written warning to. . . So I wanted to come back and find out which dog actually was involved in the bite." The following morning, Mr. Butts received information from the Health Department regarding the dog's owner and learned that the dog was not currently vaccinated or licensed. Mr. Butts returned to the residence where the bite occurred. He posted a notice to the dog's owner. Apparently the owner was still not home because he posted a warning which included the following necessary corrective action: "Your dog must be placed into quarantine by 5:00 pm on 8-14-02 at our shelter or a licensed vet. If you do not have this done today your animal will be impounded and you will receive a citation of $200.00 per day." The warning required the owner to correct the violation by 5:00 p.m. that day. Officer Butts proceeded to handle other calls until his shift was over. He did not make contact with the dog's owner before his shift ended. His shift ended before 5:00 p.m. The dog's owner called Animal Services after 5:00 p.m. on August 14, 2002. Petitioner took the call. After speaking to the dog's owner, she called a veterinarian and learned that the dog's vaccination had expired by a few months. She did not pick up the dog. She gave the following reason: Yeah, it happened on property. The dog was confined to his property. We had contacted the owner. And basically even though the vaccination had expired, even a one-year vaccination is good for three years. This is a known fact of any vaccine, any rabies vaccine manufactured in the United States, a one-year vaccine has an efficacy of three years. So I take all that matter into consideration when I have to make a decision as to what to do with a bite dog. Petitioner told the dog's owner that he had to comply with the written warning given by Mr. Butts. According to Petitioner, she told the dog's owner that he had to quarantine the dog off the property either at the shelter or at a veterinarian clinic. She also informed him that the only person who could reverse that decision was her supervisor. The next morning, August 15, 2002, the dog's owner called Mr. Burris. Mr. Burris spoke to the dog's owner and then questioned Petitioner to get her side of the story. He then instructed Petitioner to pick up the dog. She did not pick up the dog as instructed; another officer picked up the dog later that day. Mr. Burris gave a verbal warning to Officer Butts regarding his handling of the dog-bite incident. Mr. Butts had received previous disciplinary actions, including suspensions, prior to Mr. Burris becoming the field supervisor. However, on August 20, 2002, Mr. Burris initiated a Notice of Proposed Disciplinary Action (Notice) to Petitioner in which he recommended a three-day suspension without pay. The reasons referenced in the Notice were willful negligence in the performance of assigned duties or negligence which would endanger the employee, other employees, or the public; and refusal to perform assigned duties or to comply with written or verbal instructions of a higher level supervisor. The narrative of the Notice referenced the dog-bite incident and the August 6, 2002, improper conduct memorandum. Mr. Burris explained his decision to give different disciplinary actions to Officer Butts and Petitioner: Q What should she have done with the dog? A She should have impounded it immediately. If the owner refused her, she should have issued him a citation for failure to comply. Q Jay Butts participated in this. We had some testimony about that. Jay Butts participated in this event two days prior and one day prior to Ms. Carbia getting involved. Why wasn't Butts given any suspension on the same matter? A Jay Butts was given the same verbal consultation that Officer Carbia had received. The only thing Jay Butts could have done differently would have perhaps left a posted notice the day of or given a notice to the roommate with generic information. Jay Butts received consultation pertaining to that. He did not receive disciplinary action because he never made any contact with the owner. The officer that made contact with the owner and had the first opportunity to take the dog was Officer Carbia. Q So there is a difference in the seriousness of her offense and Jay Butts' offense? A Absolutely. Q Hers was more serious? A Yes. As a result of the Notice, a grievance hearing took place on August 26, 2002, in the director's office. Wayne Mangum, who at that time was the union steward, Mr. Burris, and Petitioner were there, as well as the director, Dr. Caligiuri. During the meeting, Petitioner explained her position. At some point in the meeting, Dr. Caligiuri made a comment to the effect that 80 years ago women could not vote.4/ Petitioner found that comment to be discriminatory toward women. When asked whether Dr. Caligiuri's demeanor in that meeting was aggressive or not cordial, Mr. Mangum replied that his demeanor was "uncordial." In any event, Dr. Caligiuri's comment was offensive and inappropriate. During the August 26, 2002, meeting, Mr. Burris instructed Petitioner to discontinue striking the word "within" from the form used when giving an animal owner a time frame within which to bring in an animal to be impounded. She had not been instructed regarding that previously. Mr. Burris received a copy of a warning form dated August 28, 2002, on which Petitioner had crossed out the word "within" contrary to his instructions. He took no action at the time since he thought it might have been a "slip of the pen." He then received another warning form dated September 9, 2002, regarding a dog bite which Petitioner had again altered by crossing out the word "within." Petitioner had written on the form that the warning had been posted. Posting is a procedure officers follow when the animal owner cannot be found. The notice is posted on the door of the residence for the owner to find upon returning home. Based upon his telephone call to the dog's owner and the information on the form, Mr. Burris was of the belief that the form had not been posted, and that Petitioner's indication on the form that it had been posted was inaccurate. Mr. Burris met with Petitioner regarding this incident. Petitioner acknowledged at hearing that she spoke to the dog's owner, but was intimidated and confused when questioned by Mr. Burris about whether or not she had spoken to the owner. Petitioner contends that she did not lie to Mr. Burris, that initially the owner did not come to the door but later did come to the door. According to Petitioner, she simply neglected to cross out the word "posted" or ask the owner to sign the form. On September 18, 2002, Mr. Burris signed and provided a Notice of Proposed Disciplinary Action to Petitioner which proposed her termination from employment. The stated reasons for the proposed action were willful negligence in the performance of assigned duties or negligence which would endanger the employee, other employee, or the public; deliberate falsification and or destruction of county records; and refusal to perform assigned duties or to comply with written or verbal instruction of a higher level supervisor. The Notice referenced the August 28, 2002, warning notice with the word "within" crossed out; the September 10, 2002, warning notice with the word "within" crossed out; the written word "posted" on a warning when she had personally spoken to the dog's owner; and the meeting on August 26, 2002, which resulted in her three-day suspension. The Notice concluded: This is the same type of circumstance concerning the same written instruction after meeting with Blanca and her union rep. This time Blanca was untruthful in her statements, even after I gave her three opportunities to tell me that she had personally spoken to the dog owner. By writing "posted" on the notice which indicates the owner was not home, she falsified a county document. Blanca hand delivered the notice to the dog owner and did not impound the dog when she had the opportunity. Petitioner was terminated from her employment with Respondent effective October 2, 2002. There is no evidence in the record that Petitioner complained to anyone that she felt she was discriminated against on the basis of her gender or national origin. The only evidence presented regarding her national origin was Petitioner's brief testimony: Q Were there any other Hispanics employed at animal services during the time frame that Mr. Burris was there? A No. Do you feel that your national origin had something to do with the way Mr. Burris treated you? A Certainly just—basically I felt that I was treated differently, yeah.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 27th day of July, 2004, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2004.
The Issue Whether Respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed veterinarian in the State of Florida, having been duly issued license number VM 0002694. In April of 1988 Respondent practiced veterinary medicine from an establishment located in Dade County, Florida, that had not been licensed by Petitioner. Upon receiving a notice of violation, Respondent executed a cease and desist agreement, which he did not violate. Within thirty days of the notice of violation an application for licensure of the establishment was filed with Petitioner. Accompanying the application was a check which included the amount of the application fee and the amount of the late payment. On or about April 22, 1988, Respondent performed surgery on Yahara, a female dog owned by Arcadio Rolon. The purpose of the surgery was to spay Yahara. On or about April 25, 1988, Respondent informed Arcadio Rolon that Yahara had died on April 22, 1988. On April 27, 1988, Arcadio Rolon took the carcass of Yahara to Dr. David T. Wise, Jr., D.V.M., to have an autopsy performed. The autopsy revealed that the dog had recently been spayed. One ligature adjacent to the right ovarian string and artery had been partially attached to fat and was partially free floating. Another ligature was attached to fat mesentery in the caudal abdomen adjacent to the uterine strings and artery. Several sutures had been attached primarily to fat. There was a great deal of clotted blood in the abdominal cavity. The cause of Yahara's death was internal hemorrhaging, followed by shock and eventual death. The internal hemorrhaging was caused by Respondent's failure to properly tie off the severed ovarian and uterine arteries during the spay procedure. Yahara was a healthy dog before the spay procedure. The spay procedure on Yahara was not performed properly by Respondent in view of the standard of care exercised in the practice of veterinary medicine in the State of Florida There was no direct evidence that the premises utilized by Respondent in the practice of veterinary medicine were maintained in an unsanitary condition. The inspection reports were the only evidence that the premises had been kept in an unsanitary condition. These inspection reports were compiled by persons who were not witnesses at the hearing. None of Petitioner's witnesses had observed the premises before the Administrative Complaint was filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Professional Regulation, Board of Veterinary Medicine, enter a final order which finds Respondent guilty of violating the provisions of Section 474.215, Florida Statutes, as alleged in Count I of the Administrative Complaint, which finds Respondent guilty of violating the provisions of Section 474.214(1)(o), Florida Statutes, as alleged in Count II of the Administrative Complaint, which finds Respondent not guilty of having violated the provisions of Section 474.214(1)(d), Florida Statutes, as alleged in Count III of the Administrative Complaint, and which further finds Respondent not guilty of having violated the provisions of Section 474.214(1)(v), Florida Statutes, as alleged-in Count IV of the Administrative Complaint. For his violation of Section 474.214(1)(o), Florida Statutes, it is recommended that Respondent's license to practice veterinary medicine in the State of Florida be suspended for a period of ten days, that Respondent's license be thereafter placed on probation for one year, and that an administrative fine in the sum of $1,000.00 be imposed against Respondent. It is further recommended that there be no additional penalty imposed for Respondent's violation of Section 474.215, Florida Statutes, because of the action taken by Respondent following the notice of violation. DONE AND ENTERED this 31st day of August, 1989, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 31st day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-642 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. The proposed findings relating to the inspection reports are rejected because the contents of the inspection reports are hearsay. Addressed in paragraph 3. Addressed in paragraph 4. Rejected as being unnecessary to the results reached. Addressed in paragraph 9. The proposed findings of subparagraphs A., B., C., and E. are rejected as being speculative and as being unsupported by competent, substantial evidence. The proposed findings of subparagraph D. are addressed in paragraph 7 and are subordinate to the findings reached in paragraph 9. The proposed findings of subparagraph F. are rejected because Petitioner failed to establish that the medical record introduced as Petitioner's exhibit 1 constituted all the records kept by Respondent on this matter. Addressed in paragraphs 5 and 6. Addressed in paragraphs 7 and 8. Rejected as being based only on hearsay evidence. Rejected as not being a finding of fact. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-4. Addressed in paragraph 2. Rejected as being irrelevant and unnecessary to the conclusions reached. Rejected as being recitation of testimony. 7-9. Rejected as being conclusions of law and as being unnecessary to the results reached. 10. Rejected as being unnecessary to the results reached. 11-14. Rejected. Dr. Wise's report identified the dog upon which Dr. Wise performed the autopsy as being the dog Mr. Rolon brought to him. 15-16. Rejected as being unnecessary to the results reached. 17-20. Rejected as being unnecessary to the results reached. 21-22. Rejected as being contrary to the evidence. Rejected as being unnecessary to the results reached. Addressed in paragraph 2. Addressed in paragraph 10. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Juan C. Elso, Esquire 1331 Southwest 85th Court Miami, Florida 33144 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Linda Biedermann, Executive Director Department of Professional Regulation Board of Veterinary Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 ================================================================= AGENCY AMENDED FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF VETERINARY MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs DPR CASE NUMBER: VM 0098214 DOAH CASE NUMBER: 89-0642 SALVADOR ALDEREGUIA, D.V.M., LICENSE NUMBER: VM 0002694 Respondent. /
The Issue In treating Ms. Cottrell's English bulldog on May 15, 1987: Whether Respondent knowingly concealed information relevant to violations of Chapter 474, Florida Statutes; Whether Respondent knowingly prepared a false report or record; Whether Respondent performed or prescribed unnecessary treatment; Whether Respondent was negligent or guilty of misconduct in this treatment; Whether Respondent falsified records pertaining to this treatment; and Whether Respondent was incompetent or unprofessional in his dealings with Ms. Cottrell.
Findings Of Fact At all times relevant hereto Phillip F. Habib, Respondent, was licensed as a doctor of veterinary medicine as alleged. On May 15, 1987, Ms. Sandra Cottrell came home from work at approximately 5:00 p.m. and observed her three-year-old English bulldog "Jake" to be lethargic, which was unusual. Being familiar with English bulldogs and aware that their state of health can change rapidly, Ms. Cottrell called her veterinarian, Dr. LaDue, who advised her to take the dog's temperature, keep a close watch on the dog and call back with temperature results and any changes in the dog. At this time Ms. Cottrell was living at her mother's home and did not have a thermometer with which to take Jake's temperature. She called Dr. LaDue back to report she was unable to take Jake's temperature but he seemed to be in no present distress. Shortly thereafter Ms. Cottrell decided to take Jake for a walk. By the time they reached the end of the driveway she realized that Jake was acting abnormally and she became concerned. She aborted the walk and decided to take Jake to her veterinarian. By this time Jake had begun to have difficulty breathing. Ms. Cottrell then decided that Jake's condition required emergency intervention and had her sister-in-law look in the telephone book for the nearest animal clinic. That clinic was Hope 'n Happiness Animal Clinic in Clearwater, Respondent's place of business. Ms. Cottrell, accompanied by her sister-in- law, drove Jake to this clinic. Both Hope Habib, wife of Respondent, and Respondent testified that Ms. Cottrell told them upon her arrival that she had been playing frisbee with Jake when he became ill. The only activity of Jake that Ms. Cottrell testified to was attempting to take Jake for a walk. Ms. Cottrell was not called as a rebuttal witness (although she was still present) to confirm or deny the frisbee testimony. Although Respondent testified he didn't know what a frisbee was until he later asked his six-year-old child, the Habibs' testimony is not deemed credible. If, in fact, Respondent was told that Jake had been chasing a frisbee when he became ill this presented a conclusive reason for suspecting Jake was suffering from hyperthermia. Upon arrival at the clinic Jake was carried into the reception area and Hope Habib showed them into an examination room. During this time Jake was wheezing and having difficulty breathing. Respondent promptly started examining Jake with Ms. Cottrell present. English bulldogs are very susceptible to heat prostration or hyperthermia. Up to 50 percent of English bulldogs who get hyperthermia die. This phenomenon is widely known among English bulldog owners and veterinarians. Temperatures above 103 degree F. for English bulldogs need to be reduced quickly. At no time while Jake was being examined and treated by Respondent did Ms. Cottrell see the Respondent take Jake's temperature. Nevertheless, Respondent entered temperature of 103.0 degrees on the medical record (Exhibit 5). He also recorded Jake's weight at 80.0 pounds. Jake's normal weight is 67- 68 pounds. At no time did Ms. Cottrell observe Respondent weigh Jake. When first interviewed by Petitioner's investigator Respondent admitted that he had estimated the dog's weight. Shortly after commencing his examination of Jake, Respondent advised Ms. Cottrell that Jake was having a heart attack and that she had killed her dog by letting him get too fat. Subsequently he diagnosed Jake as having a diaphragmatic hernia which required immediate surgery. X-ray equipment needed to diagnose such a hernia was not available at Hope 'n Happiness Clinic on May 15, 1987. Respondent referred Ms. Cottrell to an emergency animal clinic in Clearwater several blocks distant for surgery. Respondent also called this clinic to alert them of the referral. While treating Jake, Respondent administered some 750 mg soludeltacortef, which is a recommended treatment for animals suffering heat prostration (Exhibit 6). This drug serves to reduce the effects of shock to the animal and it is recommended to be given IV (Exhibit 6). Respondent testified, and his medical record indicate, that soludeltacortef was administered intravenously. Ms. Cottrell testified that Respondent was unable to locate a vein for an IV injection and that several "shots" were given Jake in the hip muscle. In his notes, apparently written later that evening (Exhibit 5), Respondent lists possible diagnoses of: shock, "lung damage or diaphragmatic hernia, heart problem and maybe other diagnosis." He does not include heat prostration as a possible diagnosis. To demonstrate the diaphragmatic hernia Respondent pressed on Jake's abdomen which caused the animal to regurgitate. X-rays subsequently taken in Tampa did not confirm a diaphragmatic hernia. The existence of a diaphragmatic hernia cannot be determined by palpitating the abdomen. During the treatment of Jake by Respondent attempts to administer oxygen were made by placing a face mask over Jake's nose. This was unsuccessful and further agitated the animal. This effort was discarded and Ms. Cottrell was referred to the emergency clinic. Respondent and his wife's testimony that the oxygen given Jake revived him to the extent that he could stand on the floor without assistance and could have walked out of the Respondent's clinic is not credible under the circumstances. During the 30-45 minutes Jake that was being treated by Respondent, Ms. Cottrell was very upset and crying due to her concern for her dog's health. However, she remained in the examining room the entire period but for a few seconds when she went to the lobby to get her sister-in-law to come to the examining room. Hope Habib testified that Ms. Cottrell was in and out of the examining room frequently to make telephone calls while Jake was being treated. Considering the circumstances and the potential bias of the witness the testimony of Ms. Cottrell is deemed more credible. When Ms. Cottrell asked Respondent how long Jake would live she was told anywhere from 30 minutes to 5 hours or more. Upon leaving Respondent's clinic Ms. Cottrell decided to take Jake to Tampa to the clinic of her regular veterinarian. This was a trip of 30-35 minutes as compared to the 5-10 minute ride to the emergency clinic to which she had been referred by Respondent. The weather on May 15, 1987 was normal for that time of year with a high of 83 degrees F. and a low of 71 degrees F. The temperature recorded by the Department of Commerce at the St. Petersburg-Clearwater airport at 5:50 p.m. and 6:51 p.m. was 74 degrees F. (Exhibit 10). Although Ms. Cottrell's car was not air-conditioned, she had the windows down during the drive from Clearwater to Tampa and Jake was in the front seat on the passenger's side during this trip. At the time Jake departed Respondent's clinic, Respondent believed that Jake was being taken to the emergency animal clinic in Clearwater. When he called this clinic to see if Jake had arrived and learned he had not, he then called Ms. Cottrell's home phone where he learned that Jake had been taken to the Tampa clinic. Respondent then called the Tampa clinic and advised the doctor there treating Jake that Respondent had given Jake soludeltacortef and to inquire about the dog. The medical records pertaining to the treatment given Jake by Respondent (Exhibit 5) were prepared after Jake arrived at the Tampa clinic. Respondent's testimony that these notes were prepared that evening is otherwise unrebutted. Upon arrival at the Tampa clinic Jake's temperature was 107 degrees F. and emergency treatment for hyperthermia was begun. The animal was immediately hosed down in an attempt to reduce his temperature. Temperature readings were taken frequently during this period until Jake's temperature was reduced to 103 degrees F. and at a wider spaced interval after that temperature was reached. No evidence was presented regarding the possibility or likelihood of Jake's temperature rising from 103 degrees F. while at Respondent's clinic to 107 degrees F. some 30-45 minutes later when he arrived at the Tampa clinic. The conditions under which this 35-40 minute ride was made was in a non air conditioned but open car with the outside temperature of 74 degrees F. The dog was closely monitored at the Tampa Bay Animal Center after being taken there Friday evening, May 15, 1987. Ms. Cottrell visited the center to see Jake on Saturday, May 16, 1987 when the dog appeared to be semicomatose; and Jake died Saturday evening. Respondent's method of writing medical records in the third person led some witnesses to conclude that these records had been prepared after charges of malpractice were made. Respondent's testimony that he always prepared medical records after the close of the clinic was unrebutted as was the testimony of other witnesses who had reviewed many of Respondent's records that Respondent writes all of his medical records in the third person. After learning of the complaint filed in this case, Respondent telephoned Ellen Trapp, D.V.M., the veterinarian who treated Jake at Dr. LeDue's Tampa clinic, and Dr. LeDue; and indicated that they, as veterinarians needed to stick together. When Dr. LeDue responded that Respondent had failed to properly diagnose Jake's condition by failing to take his temperature, Respondent hung up on him. Respondent also stated to Dr. Trapp that he would not be held responsible for his actions if something happened at the end of this court hearing. To Petitioner's investigator Respondent subsequently denied ever contacting any veterinarian regarding this case.
Recommendation It is recommended that the license of Phillip F. Habib as a doctor of veterinary medicine be revoked. It is further recommended, that the revocation be stayed for a period of 3 years probation under such terms and conditions as the Board of Veterinary Medicine deems appropriate, and that, at the expiration of the three years probationary period, unless sooner vacated, the revocation be set aside and Respondent restored to good standing. ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS 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 7th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4691 Treatment accorded Petitioner's proposed findings: Included in H.O. #1. Included in H.O. #2, 3, 4. Included in H.O. #4, 5. Included in H.O. #7. Included in H.O. #10. Included in H.O. #9. Included in H.O. #9. Included in H.O. #13. Included in H.O. #11, 12. Included in H.O. #9, 14. Accepted. Accepted in H.O. #10, 15. Accepted. Accepted in H.O. #17. Included in H.O. #15, 16, 18. Included in H.O. #9. Accepted. However, this statement was made long after Jake's death was determined to have resulted from hyperthermia. 18-19. Included in H.O. #11. Accepted. Included in H.O. #22. 22-23. Accepted as conclusions of law. Included in H.O. #8. Accepted Accepted insofar as included in H.O. #12. Accepted only insofar as included in H.O. #13. Included in H.O. #13. Rejected as irrelevant. 30-32. Rejected as irrelevant. Accepted. However, Respondent testified that only a date was added to the record. Rejected as unsupported by credible evidence. Accepted. Treatment accorded Respondent's proposed findings. Included in H.O. #2, 3, 4. Included in H.O. #5. Included in H.O. #8, 14. Accepted as testimony of witness. Accepted insofar as included in H.O. #5, 15. Included in H.O. #14. Included in H.O. #3, 9. 8-9. Rejected as irrelevant. Included in H.O. #16. Accepted. Included in H.O. #3, 9. Irrelevant. Irrelevant. Dr. LaDue was not involved in treatment of Jake. Accepted Included in H.O. #15. Accepted. Rejected as irrelevant when decision made. Included in H.O. #3 and 6. Included in H.O. #10. Accepted insofar as no one could explain the missing X-ray. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Accepted. Rejected as unsupported by Douglas' testimony. First sentence accepted. Last sentence rejected. Rejected as irrelevant. Rejected as irrelevant. Rejected as repetitious (see 12). Accepted but irrelevant. Accepted but irrelevant. Rejected. Record shows dog's weight as 80.0 pounds. Irrelevant. Irrelevant. Irrelevant. Dr. Douglas never saw the dog. Irrelevant because of duplicity. Accepted. Accepted but irrelevant. Accepted but irrelevant. Rejected except to the extent that almost anything is possible. Irrelevant. Accepted. Accepted. Accepted as testimony of Mandelker. Irrelevant. Accepted in part. Manner in which Habib prepared records only part of basis for Green's opinion. Irrelevant. Rejected. Accepted but irrelevant here. Irrelevant. Irrelevant. Rejected. No evidence submitted that Jake was ever hypothermic on May 15, 1987. Term hypothermia misused or reporter error. Accepted. Irrelevant. Rejected as unsupported by Cottrell's testimony. Accepted-insofar as in H.O. #13. Rejected. Accepted insofar as included in H.O. #14. Rejected. See H.O. #13. Irrelevant. Irrelevant. Accepted. Accepted. See H.O. #21. Included in H.O. #21. Accepted. Rejected. Habib's testimony in this regard differs from that of his wife. However, the accuracy of the testimony is not material. Rejected. Rejected. Rejected. See H.O. #13. 71. See H.O. #15. Irrelevant. Included in H.O. #17. Included in H.O. #17. 75. See H.O. #21. Accepted. Accepted. Trapp didn't see the dog until he was presented that evening. Irrelevant. Accepted. Accepted. Accepted insofar as included in H.O. #12. Accepted but irrelevant. Irrelevant. Included in H.O. #17. Repetitious. Irrelevant. Irrelevant. Cottrell was not working at the LaDue clinic in May 1987 and was getting no discount at that time. Irrelevant. Accepted. Accepted as Goldston's opinion. Accepted as Goldston's opinion. Rejected. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Louis Kwall, Esquire 138 North Ft. Harrison Avenue Clearwater, Florida 34615 Kenneth Easley Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Linda Biedermann Executive Director Board of Veterinary Medicine Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
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
