The Issue The issues in this case are whether Respondent, Douglas Lyday, D.V.M., committed the violation alleged in an Administrative Complaint, DPBR Case Number 2008-055022, issued by Petitioner Department of Business and Professional Regulation, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with the duty to regulate the practice of veterinary medicine in Florida pursuant to Chapters 455 and 474, Florida Statutes. At the times material to this proceeding, Douglas S. Lyday, is and was a licensed Florida veterinarian, having been issued license number VM 6396. At the times material to this proceeding, Dr. Lyday’s address of record has been 964 Southwest 12th Street, Boca Raton, Florida 33486. Dr. Lyday’s Treatment Through the Professionals Resource Network. In July of 2006, a Dual Diagnosis Advocacy Contract (hereinafter referred to as the “July 2006 PRN Contract”), was entered into between Dr. Lyday and the Professionals Resource Network (hereinafter referred to as the “PRN”), whereby Dr. Lyday agreed to, among other things, undergo treatment for alcohol dependency and psychiatric issues. Consistent with the July 2006 PRN Contract, Dr. Lyday received in-patient treatment until July 26, 2006, when he was scheduled to begin out-patient treatment. On October 30, 2006, due to a failed urinalysis test, rather than entering out-patient treatment, the July 2006 PRN Contract was voided. On March 15, 2007, a second contract, titled a Dual Diagnosis Monitoring Contract, was entered into between Dr. Lyday and the PRN (hereinafter referred to as the “March 2007 PRN Contract”). Inconsistent with the terms of the March 2007 PRN Contract, Dr. Lyday failed a second urinalysis test on or about June 10, 2008. He failed additional tests in June and July 2008, and failed to report to PRN by telephone on a number of occasions. In August 2008 Dr. Lyday again entered inpatient treatment and, as a consequence, the March 2007 PRN Contract was voided. Subsequently, the PRN was informed that Dr. Lyday was no longer in in-patient treatment. The PRN therefore sent a letter by certified mail to Dr. Lyday’s address of record in August 2008. That letter requested that Dr. Lyday contact PRN in order to undergo an evaluation, followed by a third PRN contract. The letter also indicated that, if Dr. Lyday failed to comply, the matter would be referred to the Department. Dr. Lyday never received the August 2008 letter, despite the fact that it had been sent to his address of record. Having failed to contact the PRN as directed, the matter was referred to the Department. On February 3, 2009, the instant action was instituted. Ultimate Findings. The PRN and the Department have concluded that Dr. Lyday is “unable to practice veterinary medicine with reasonable skill or safety to patients by reasons of” “his alcohol dependency issues and his failure to comply with the terms of the treatment program offered by the Professionals Resource Network.” In support of the Department’s position, the following testimony, which is the only non-hearsay evidence in support of the Department’s position, was offered by Debra Troupe, Dr. Lyday’s PRN case manager: Q. Do you believe the respondent is fit to practice veterinary medicine with reasonable skill and safety at this point in time? A. The last contact PRN had with him, we did not believe he was able to practice [with] reasonable skill and safety. Now, we have had no contact with Dr. Lyday since mid-September 2008. In September, we asked the Department to do an emergency suspension. Lines 18-25, page 29, Transcript. Based upon Ms. Troupe’s credible testimony, the Department has proved that Dr. Lyday, as of September 2008, was unable to practice veterinary medicine with reasonable skill or safety to patients by reason of his alcohol dependency issues. The Department did not prove, however, whether Dr. Lyday continues as of the date of this de novo proceeding to be unable to practice veterinary medicine due to alcohol dependency.
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 dismissing the Administrative Complaint issued against Douglas Lyday, D.V.M. DONE AND ENTERED this 11th day of February, 2010, in Tallahassee, Leon County, Florida. LARRY J. SARTIN 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 11th day of February, 2010. COPIES FURNISHED: Elizabeth F. Duffy, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Douglas S. Lyday, D.V.M. 964 Southwest 12th Street Boca Raton, Florida 33486 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Reginald Dixon, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
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 issue in this matter is whether Respondent practiced veterinary medicine without a license; and, if so, what disciplinary action is appropriate.
Findings Of Fact The Department is the state agency charged with regulating the practice of veterinary medicine in Florida. See § 20.165(4)(a)13. and ch. 474, Fla. Stat. (2017). The Department brings this action alleging that Respondent engaged in the unlicensed practice of veterinary medicine in violation of section 474.213(1)(i), Florida Statutes (2015).3/ The Department specifically charges that Respondent, who does not hold a license as a veterinarian, used certain procedures to treat several horses, which constituted “veterinary medicine” as the term is defined in section 474.202(9). Respondent owns and operates Peak Performance Equine Dentistry. Respondent is not, nor has she ever been, licensed as a veterinarian in the State of Florida. As part of her “equine dentistry” services, Respondent “floats” horses’ teeth. “Floating” is the term used to describe filing or grinding down horses’ teeth to prevent overgrowth. Unlike humans, horses’ permanent teeth continue to grow throughout their lifetime. (Hence, the origin of the phrase “long in the tooth.”) Because of the manner in which horses chew, their teeth can develop sharp points and edges. Floating is the process of filing down those points to balance out or flatten the teeth. Floating helps horses masticate, as well as prevents tooth problems. Florida law specifically allows non-veterinarians to manually float teeth, i.e., with a hand-held file or rasp. See § 474.203(5)(b), Fla. Stat. However, only licensed veterinarians, or persons immediately supervised by a veterinarian, may float teeth using power tools. See § 474.203(7), Fla. Stat. Floating teeth by hand is a labor- intensive and lengthy process. Using a power tool, on the other hand, allows the practitioner more control over the filing process, as well as reduces the time needed to treat the teeth. On February 15, 2016, Tony King contacted Respondent to schedule an appointment for her to float the teeth of several of his horses. Mr. King learned of Respondent’s services through her advertisement for “equine dentistry” on the internet. On February 24, 2016, Respondent arrived at Mr. King’s barn at approximately 10:00 a.m. Mr. King identified nine horses whose teeth needed to be floated. Seven of the horses belonged to Mr. King. The other two horses were boarding at his barn. (None of the horses were owned by Respondent.) After unloading her equipment, Respondent proceeded to float the teeth of the first horse. She used a hand file and manually ground down the horse’s teeth. After Respondent floated the teeth of the first horse, she moved onto the second horse. Again, Respondent used a file and ground down the horse’s teeth by hand. However, Respondent soon found that the second horse was more difficult to treat. It became quite agitated as she worked on its teeth. Therefore, Mr. King decided to place a “twitch” on the horse’s nose. A “twitch” is a metal clamp that is strapped to the horse’s nose to calm it down and keep it under control. As Respondent continued floating, however, the horse suddenly reared up on its hind legs. When the horse descended, the twitch on its nose struck Mr. King on the left side of his face. Mr. King was knocked to the ground. He instinctively reached up to the wounded area. He felt that his eyeball had popped out of its socket and was resting on his cheek. (The eye was still attached to the optic nerve.) He impulsively shoved his eyeball back into the socket. When Mr. King gathered his wits, he quickly realized that he needed medical attention. He urged Respondent to continue working on the horses. Then, despite his blurred vision in one eye, he drove himself to a nearby surgery center where his wife was working. At the center, an eye doctor examined Mr. King and determined that his eye and vision issues would satisfactorily resolve themselves without treatment. (Mr. King did receive several stitches for a small cut under his left eye.) After his examination, Mr. King drove back to the barn returning approximately three hours later. At the barn, Mr. King was unsettled by what he found. According to his (one) eye witness testimony, Respondent was still working on the horses. However, in his absence, Mr. King believed that Respondent had 1) used a power tool to float the teeth of several horses, 2) administered a sedative to up to five horses, and 3) was preparing to pull “wolf” teeth from several horses. The Use of a Power Tool Regarding the use of a power tool, Mr. King testified that after Respondent arrived at his barn, she unloaded several pieces of equipment from her car. In this equipment, Mr. King observed power tools and a sedation bag. Upon returning to the barn after his trip to the eye center, Mr. King witnessed Respondent use an electric power tool to float the teeth of his horse, Warrior. Mr. King described the tool as having a motor and a head that Respondent applied to the horse’s mouth. He also saw that the tool was plugged into a power outlet in the barn. Sedation Floating teeth, especially with a power tool, often includes sedating the horse. Sedation makes the horse more docile and reduces the risk of harm during the treatment. Under Florida law, administering medication and drugs is considered the practice of veterinary medicine. See § 474.202(9), Fla. Stat. An unlicensed person may sedate a horse only if they are under the immediate supervision of a licensed veterinarian. See § 474.203(7), Fla. Stat. Mr. King testified that when he returned to the barn from the eye center, Warrior appeared to be heavily sedated. The horse was having difficulty keeping his head up on the rest. His ears were flat, and his nose hung down almost to the ground. Mr. King further noticed that at least four other horses showed signs of sedation in that they could not hold their heads up either. Mr. King also observed several plastic tubes or plungers on the ground which he believed were used to administer a gel- type sedative to the horses. Finally, Mr. King testified that Respondent, in fact, told him that she had sedated the horses. Mr. King further attested that he directly witnessed Respondent administer a sedative to a paint mare. Mr. King remarked that he saw Respondent holding a small syringe with a needle. He then watched her poke the paint mare several times with the needle, searching for a vein, before she injected the drug. Mr. King also relayed that Respondent commented that her needles were too small, as her mother had purchased the wrong size. Removing “Wolf” Teeth A horse’s “wolf” teeth are deciduous premolars. (They are similar to human wisdom teeth.) Wolf teeth often interfere with the fit of a bit in a horse’s mouth. Therefore, wolf teeth are frequently removed. Extracting wolf teeth, however, is not considered part of floating a horse’s teeth. Instead, removing wolf teeth is a surgical procedure due to the fact that pulling teeth typically requires sedation, as well as the use of certain medical equipment. As such, removing wolf teeth cannot be performed by an unlicensed person, unless such person is under the immediate supervision of a veterinarian. See §§ 474.202(13) and 474.203(7), Fla. Stat. Regarding Respondent’s removal of “wolf” teeth, Mr. King testified that after he observed the gel tubes and the syringe, Respondent informed him that several horses needed their wolf teeth extracted. Mr. King watched as Respondent pulled the wolf teeth from three horses, including Warrior, Scout, and the paint mare. Mr. King expressed that Respondent appeared to have difficulty removing the wolf tooth from the paint mare, as it took a long time. Within days after Respondent’s visit to his barn, Mr. King noticed that several horses were having trouble chewing. Upon inspecting his horses, Mr. King found at least one tooth that still had a point, and other teeth that were rounded, instead of filed flat. Shortly thereafter, Mr. King sought the care of a veterinarian to fix the problems. Soon afterwards, Mr. King complained to the Department about Respondent’s equine dentistry services. Based on Mr. King’s complaint, the Department charged Respondent with three counts of practicing veterinary medicine without a license, including: floating teeth using a power tool, instead of by hand, in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(13), Florida Statutes; pulling “wolf” teeth in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(13); and sedating at least one horse in violation of sections 455.227(1)(q), 474.213(1)(i), and 474.202(9. In response to the Department’s allegations, Respondent flatly denied that she used a power tool to float the teeth of Mr. King’s horses. Respondent testified that she floated all of the horses by hand with a file. Respondent also refuted Mr. King’s testimony that she sedated any horses or pulled any wolf teeth. Respondent further denied that she has ever used power tools in her business. Neither has she ever sedated horses or pulled their teeth. Respondent maintained that she floats teeth exclusively by hand and with hand tools. Respondent also disputed key portions of Mr. King’s account. Respondent testified that it was Mr. King who raised the option of sedating his horses. Despite his suggestion, Respondent contended that she refused to do so. Respondent further insinuated that the metal object Mr. King observed in her hand was a tool used to scrap tarter off of a horse’s teeth. Finally, Respondent argued that she finished her floating treatment on all nine horses before Mr. King returned to the barn from the eye center. Therefore, he could not have watched her use a power tool, pull teeth, or sedate horses. Notwithstanding Respondent’s assertions, evidence presented at the final hearing established that Respondent is familiar with, and has received training in, the use of a power tool to float horses’ teeth. In May 2015, Respondent attended an equine dentistry program in Virginia during which time she received training on how to float horse’s teeth using both hand and rotary power tools. Shortly thereafter, she started her equine dentistry business in Florida. Several photographs of Respondent using a power tool on a horse are posted on her business’s Facebook page. Respondent acknowledged that the use of power tools and sedation, as well as the removal of wolf teeth, constitute the practice of veterinary medicine in Florida. Therefore, she could only perform these procedures and techniques under the immediate supervision of a veterinarian. Unrelated to the issue of Respondent’s use of a power tool and sedation, Respondent and Mr. King disputed whether Respondent received full payment for her equine dentistry services. Respondent testified that after she floated the nine horses, she presented Mr. King with invoices for her work. At the final hearing, Respondent produced nine separate Equine Dental Records detailing the amount she charged, as well as the treatment she provided for each horse. Respondent testified that it is her routine practice to complete an Equine Dental Record while she works on a horse and provide a copy to the client. Respondent relayed that her standard charge for floating services is $75 per horse. The Equine Dental Records that she produced record that she billed Mr. King $75 per horse ($675 total) and for no other treatment. Therefore, Respondent asserts that her documents confirm that she only floated the nine horses’ teeth and did not pull wolf teeth or administer sedation. Respondent also stated that Mr. King only had $500 in cash when she presented him with the invoices. Therefore, he told her that he would mail her a check for the remainder. However, when she called Mr. King a week later to follow up on his payment, he refused to pay the rest of the bill. Instead, he demanded that she pay him $500 to cover the medical cost of his eye injury. At the final hearing, Respondent declared that Mr. King filed a false complaint against her in an effort to extort payment from her for his medical expenses. Respondent also pointed out that the amount she charged, as recorded on the Equine Dental Records she prepared, does not match the figure Mr. King recalled he paid her. Therefore, his memory of the event is not credible or reliable. Mr. King remembered that Respondent charged him around $600 for the floating procedure. But, he asserted that she charged him an additional amount for the sedation and the extraction of the wolf teeth. Mr. King stated that he paid Respondent the full amount of her services, in cash, on the date she treated his horses. Mr. King denied that he ever received or saw the Equine Dental Records Respondent produced at the final hearing. Mr. King disputed Respondent’s claim that she supplied him with a written bill, invoice, or receipt of any kind for her floating services. Mr. King further denied that he demanded Respondent pay for his medical expenses. He represented that he owed nothing for his hospital visit because his wife worked at the facility. The Department introduced the testimony of Patricia Austin in rebuttal.4/ Ms. Austin testified regarding a similar floating service she received from Respondent on her horse. Ms. Austin was acquainted with Respondent from boarding her horse at a barn where Respondent took lessons and occasionally cared for horses. Ms. Austin testified that in May 2016, she hired Respondent to float the teeth of her horse, Sapphire. During the procedure, Ms. Austin observed Respondent use a power tool to file down Sapphire’s teeth. Ms. Austin described the power tool as a long metal device with a grinder on the end. The tool was equipped with a power cord and was plugged in during the treatment. Ms. Austin also witnessed Respondent sedate her horse. Ms. Austin watched as Respondent injected Sapphire with a needle. Following the injection, Ms. Austin relayed that Sapphire’s head and ears began to droop, and she appeared sleepy. Ms. Austin paid Respondent for her services in cash, half at the time of treatment and the other half two weeks later. Respondent did not provide Ms. Austin with an invoice or receipt. Neither did Ms. Austin receive an Equine Dental Record from Respondent documenting her work on Sapphire. Respondent denied that she ever floated the teeth of Sapphire or any other horse for Ms. Austin. Instead, Respondent asserts that she simply looked at Sapphire’s teeth and determined that the horse did not need dental care. The Department incurred $288.47 in investigative costs associated with this matter. Based on the competent substantial evidence produced at the final hearing, the clear and convincing evidence in the record establishes that Respondent engaged in the practice of veterinary medicine without a license. Accordingly, the Department met its burden of proving that Respondent should be disciplined for her unlicensed conduct.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation enter a final order finding that Respondent, Megan McMurran Lajara, violated section 474.213(1)(i) and impose an administrative fine in the amount of $9,000 ($3,000 for each separate violation), as well as assess costs in the amount of $288.47. DONE AND ENTERED this 31st day of January, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2018.
The Issue The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals. Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.
