The Issue Whether Respondent's License to practice veterinary medicine should be revoked or suspended for alleged violations of Sections 474.31(6) & 474.31(12), Florida Statutes. An Order was issued on December 5, 1975, consolidating this case for hearing with the case of Florida Board of Veterinary Medicine vs. Cristobal M. Gonzalez Mayo, D.V.M., Docket No. 751925, because the cases involve similar issues of law and fact. At the hearing, Respondent was advised of his right to employ legal counsel to represent him at his own expense and he elected to represent himself. He also was advised of other rights under the Administrative Procedure Act, including the right to testify as a witness, if he so desired. Respondent indicated his understanding of these rights as explained to him by the Hearing Officer.
Findings Of Fact Respondent holds license no. 231 issued by the State of Florida, Department of Professional and Occupational Regulation, Board of Veterinary Medicine, which he received on March 30, 1944. The license is currently in effect (Petitioner's Exhibit l). Respondent has been a veterinarian for some 29 years and practices his profession at 3520 N.W. 36th Street, Miami, Florida (Testimony of McGee). Respondent employed Sergio Gutierrez, D.V.M., a veterinarian with approximately 25 years of experience, but who was not then licensed by the Florida Board of Veterinary Medicine, on December 6, 1974, for a period of approximately 3 months. At the time he was hired, Dr. Gutierrez exhibited various licenses from other jurisdictions to the Respondent and the latter gained the impression that Dr. Gutierrez held a temporary Florida license, even though he did not ask that it be shown to him. At that time, Dr. Gutierrez had submitted his license application to the Board of Veterinary Medicine, but it had not been acted upon by the Board (Testimony of Gutierrez, McGee). On December 6, 1974, James Gillece, an investigator with the Department of Professional and Occupational Regulation, took a cat to the Respondent's place of business in order to investigate a complaint that an unlicensed veterinarian was employed there. Upon arrival, he informed the receptionist that the cat was sick and asked her assistance. He was referred to Dr. Gutierrez who gave the cat inoculations for rabies and distemper. Gillece thereupon paid $19.00 for the services and received a receipt. He returned on December 13, presented his identification to Dr. Gutierrez and asked him if he was licensed to practice veterinary medicine. Dr. Gutierrez informed him that, although he was licensed in 40 states, he was not so licensed in Florida. Although Respondent was not present when the cat was treated, Dr. Gutierrez testified that Respondent exercised general supervision over his activities during his employment (Testimony of Gillece, Gutierrez, McGee) On March,4, 1975, Chery Lynn Correa, along with Dr. Calvin Dugas, D.V.M., both employees of the Knowles Animal Hospital in Miami took a Doberman Pinscher to Respondent's Clinic. Their visit was prompted by a request of their employer, Dr. Knowles, who had asked them to check a complaint that there were unlicensed veterinarians working for the Respondent. Without disclosing their purpose, Correa informed the Respondent's receptionist that she had brought the dog to get rabies and distemper shots and to have some bumps on its neck checked. She and Dr. Dugas were referred to Dr. Cristobal Gonzalez Mayo, in the treatment room. Mayo checked the dog and told them that the bumps were due to an improper diet. He then administered inoculations for rabies and distemper and checked the animal for worms. He also looked at the dog's throat and diagnosed tonsilitis for which he prescribed tetracycline pills. He also procured liquid shampoo called Tergex for a skin problem and gave instructions to bathe the dog once a week. He gave two more injections of antibiotics and cortisone. The receptionist signed Respondent's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Dr. Mayo signed Respondent's name to a Canine Interstate Health Certificate reflecting the administration of the inoculations. Correa paid the bill of $43.00 and then she and Dr. Dugas departed. During the time they were at Respondent's clinic, they did not see the Respondent on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3). However, Respondent was in the back office at the time in question suffering from a headache and had asked his receptionist, to have Dr. Mayo give routine shots to animals during the day and only call him if a diagnosis was necessary. In view of Dr. Mayo's lack of a Florida license, Respondent did not permit him to diagnose, treat, or incise skin of an animal without supervision. In accordance with these directions, Respondent Mayo always checked with Respondent on a diagnosis and the latter would then prescribe the proper treatment. Dr. Mayo followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Respondent as to the treatment that was thereafter performed. Dr. Mayo was not licensed by the Florida Board of Veterinary Medicine until, July 27, 1975. Respondent professed the belief at the hearing that since secretaries could sign distemper and rabies certificates, he felt Dr. Mayo could sign an interstate health certificate although he normally signed such documents himself. Dr. Mayo testified that he had worked for the local humane society for over nine years and, during that period, had signed his own name to interstate health certificates by authorization of the board of directors of the society. The receptionist took the interstate health certificate in question to Dr. Mayo to sign because he had administered the shots to the animal. She was unaware of the fact that he was unlicensed (Testimony of McGee, Mayo, Uriquize, Petitioner's Exhibit 2).
Recommendation That the charges against Harold M. McGee, D.V.M., be dismissed. DONE and ENTERED this 2nd day of February, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of February, 1976. COPIES FURNISHED: Ronald C. LaFace, Esquire 101, E. College Avenue P.O. Box 1752 Tallahassee, Florida Harold M. McGee, D.V.Mp. Miami Veterinary Clinic 3520 Northwest 36th Street Miami, Florida 33142
The Issue Whether Respondent's veterinary license should be disciplined.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed doctor of veterinary medicine, having been issued License No. VM 0003845 by the Board of Veterinary Medicine on July 1, 1985. During his career, Respondent has taught at the University of Florida veterinary school, developed patents in the field of veterinary medicine, performed research in the veterinary field, and become certified in veterinary laser surgery. Because he does research and because his wife/veterinary partner frequently provides follow-up care, Respondent is a meticulous record keeper. Precious was a grossly obese, 11-year-old, female English bulldog. She was owned by the Salters and had been previously treated by the Respondent. In fact, the Salters were friends of some of the clinic's staff who treated her. On July 7, 1999, the Salters brought Precious to Respondent for emergency treatment. Precious was experiencing respiratory distress and had cyanotic mucous membranes indicating a lack of oxygen. Her condition was growing worse and life-threatening. Because of the emergency nature of Precious' condition, Respondent immediately began a physical examination of the dog to determine what was causing her inability to breath properly. At the same time, Respondent began a series of notes on Precious' record of treatment and examination. The notes contained in the record of treatment and examination are clearly preliminary and hurried. Some of the writing is that of other clinic staff. Most of the writing is Respondent's. The notes are consistent with the frenetic nature of the emergency. They included a checklist of various possible tests and treatments to be performed by Respondent or clinic staff, general impressions of the dogs physical condition, and possible medical causes to be ruled in or out (that is, tonsilar lymph nodes, soft palette resection, and tonsillectomy). The record, while lacking some information, does contain sufficient information to reflect Precious' condition, diagnosis, and course of treatment. Throughout the time Precious was at the clinic, the clinic staff or Respondent performed the various tests and treatments listed in the record of treatment. As each task was completed the task was checked off the checklist and results filled in, if possible. If it was not possible to fill in the results on the record of treatment, results would be noted by another method such as medical reports, logs, or note cards. In fact, Respondent makes notes regarding treatment, results, etc., of a particular animal on index cards because the larger, more formal veterinary record of an animal is often not carried around to the different places where an animal may be located in the clinic. The index cards are small and can be carried in Respondent's shirt pocket. Use of the cards was the record keeping procedure taught to him while in veterinary school at the University of Florida and is his primary contemporaneous record for an animal. Information on the note cards would later be recorded in an animal's permanent file. Respondent followed this process with Precious. However, Respondent's note cards for Precious are missing. Respondent's entries in Precious' medical record reflect some of the measures that were taken to save Precious' life. One such measure was to place Precious on an IV of lactated ringer solution (LRS in the record of treatment). However, no amount of solution was listed because when the note was made, placement of the IV was a task to be done, and the amount of solution would have been initially recorded on the index cards for Precious once treatment was complete for later entry in Precious' permanent record. Indeed the amount of solution was written on Respondent's note cards for Precious. The physical examination of Precious revealed that she had aspirated part of her mouth tissue in the epiglottis pharyngeal area of her mouth. The loose tissue appeared to be scar tissue from a previous operation or a tumor. Such loose tissue is not uncommon in English bulldogs and was exacerbated in Precious due to her obesity. Because the tissue was blocking her airway, Precious was put under anesthesia for placement of an intratrachial tube to open an airway, to complete a non- invasive ultrasound examination and to begin preparation for removal of the loose tissue. Information on the type and amount of anesthesia was kept in the controlled substances medication list and a missing anesthesia log for heart and respiration, as well as the missing index cards kept by Respondent. After placement of the tube inside Precious' airway, her condition began to improve. However, she was still in a very critical, life-threatening condition. At 2:00 p.m. Precious went into cardiac arrest. Epinephrine and Doxapram, medications used to control cardiac arrest, were administered and cardio-pulmonary resuscitation was performed. The amounts of the Epinephrine and Doxapram were not recorded in the record of treatment but were recorded on the missing note cards. Precious recovered from her cardiac arrest and was somewhat responsive to external stimuli. However, she was not aware of her surroundings and had dilated pupils. She did not recover from the coma and, subsequently, was euthanized with the owners permission. Again the amount of euthanasia solution was written on the Respondent's index cards. Because of the monitoring Precious required during the day and the other requirements of other patients at the clinic, Respondent placed Precious' permanent veterinary record and his index card notes on his desk so that he could permanently record the information in Precious' permanent file. Respondent could not finalize Precious' record until two days later because of the work load at the clinic. However, when Respondent went to finalize the record, he discovered that Precious' veterinary record, along with his index card notes and various logs and reports regarding Precious, had been stolen from his office. The office and premises were thoroughly searched by Respondent, his wife, and clinic staff. No records were found. Approximately three weeks later, part of the veterinary record reappeared at the clinic. However, it was apparent that some records in the recovered file were altered or were missing. The 3 x 5 index cards of Respondent's notes were missing. The dog owner's standard consent form for procedures on July 7, 1999, was missing and the original anesthesia log was missing. The anesthesia log, which was returned with the file, was prepared by another person who did not perform clinical tasks at the clinic. The log did not contain entries for heart and respiration which had been made by either Respondent or his assistant, Ric Berlinski. For unknown reasons a false log had been substituted for the original log by whoever had taken or had the file during its absence from the clinic. Respondent reasonably did not trust his memory to complete the veterinary records on Precious. Respondent made a decision not to change the recovered records in any manner lest he be accused of altering the records knowing that other parties may have copied the records in addition to removing and altering certain records. He felt not adding to the records was reasonable since there was no future need for the records to treat the deceased animal, the record would not be used in any research and had no educational purpose. In fact, neither the statute nor rules of the Board contain any guidance on the action a veterinarian should take under circumstances where a veterinarian, through no fault of his own such as theft, fire or disaster, is prevented from completing or maintaining an animal's veterinarian record. In response to the Salters' complaint in regard to Precious' treatment, Respondent was requested to provide Richard Ward, the investigator for the Department of Business and Professional Regulation, with records relating to Respondent's treatment of Precious. Respondent failed to inform Mr. Ward that Respondent believed the records had been tampered with or that he believed the medical records had been stolen. Respondent also failed to provide Mr. Ward with the controlled substance log containing the entries relating to the treatment of Precious because he did not ask for it. At the time, given the complaint, Respondent did not wish to and did not think it prudent to speak with the Department's investigator absent the advice of legal counsel. Therefore, he did not tell the investigator about the problems with the record. Respondent did not mislead the investigator and did not violate any statute or rule of the Board.
Recommendation Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent not guilty and dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of September, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 4th day of September, 2002. COPIES FURNISHED: C. Robert Edewaard, Esquire Post Office Box 2297 Gainesville, Florida 32602 Tiffany A. Short, Esquire Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent's B license to practice veterinary medicine in the State of Florida should be suspended, revoked, or otherwise disciplined for the reasons set forth in the Administrative Complaints filed in the above-styled consolidated cases.
Findings Of Fact Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, is the agency of the State of Florida vested with statutory authority for instituting disciplinary proceedings to enforce the provisions of Chapter 474, Florida Statutes, governing the practice of veterinary medicine. Respondent, MARIANNE T. KEIM, D.V.M., is, and at all times material hereto has been, a licensed veterinarian in the State of Florida, holding license number VM 0005113. Findings as to Case No. 95-324 On May 31, 1994, Mrs. Julie Panatela presented her six-month old female canine named Godly to Respondent's clinic in Tampa, Florida, for the purpose of having a spay procedure performed. Godly is a mixed-breed dog of primarily golden retriever parentage. Mrs. Panatela left Godly at Respondent's clinic at approximately 8:30 a.m. At that time Godly was in good health, and had no prior surgical procedures. On June 1, 1994, Respondent performed a spay procedure on Godly. Respondent was assisted during the surgery by Lori Burden, a veterinary assistant employed by Respondent. There were no gauze sponges present in the dog's abdomen when Respondent opened the body to perform the spay procedure. A canine spay procedure, an ovariohysterectomy, is the surgical removal of the dog's uterus and both ovaries. The procedure requires the dog to be placed under a general anesthesia. A sterile prep scrub is done. An incision is made in the abdomen below the umbilicus. In removing an ovary, clamps are placed on the ovarian pedicle to compress the tissue so that ligatures, i.e. sutures, may be tightly applied to the area. The purpose of this procedure is to close the blood supply so that the ovary may be removed. Similarly a clamp and ligatures are applied to the uterine body so that the organ may be removed. After removal of the uterus and ovaries, the abdomen is closed, usually in three layers. First the ventral midline, linea alba, is closed, then the subcutaneous layer, and finally the skin. There is little bleeding associated with this procedure. While there may be some seepage, only a few tablespoons of fluid is normal. Prudent veterinary practice requires the counting of sponges during a surgical procedure. Respondent has performed hundreds of canine spay procedures. It is Respondent's normal practice to always hold sponges in her fingers during surgery, and not to place sponges unattached inside an animal's body. As a routine practice Respondent's employed assistants are instructed to count sponges during any surgical procedure. On June 1, 1994, Lori Burden was the veterinary assistant responsible for counting sponges during the spay procedure Respondent performed on Godly. Six sponges were used during the procedure, four while inside the dog, and two during closing. Ms. Burden believed the sponge count to be accurate, and that all sponges were accounted for, and properly disposed of after Respondent completed the spay procedure. On the afternoon of June 1, 1994, Mrs. Panchal's husband, Raja Panatela, picked Godly up from Respondent's clinic and took the dog home. The Panchals observed that Godly was very lethargic, unusually inactive, and had difficulty going to the bathroom. Additionally, the Panchals observed about a quarter of a cup of pinkish fluid draining from the incision site. Goldie's condition continued to deteriorate that evening. More fluid was draining from the incision, and the dog was increasingly listless. The Panchals became extremely concerned about Goldie's worsening condition, and on the next day, June 2, 1994, Mr. Panatela returned with Godly to Respondent's clinic. Mr. Panatela reported to Respondent his observations, and expressed his concerns regarding Goldie's condition. Respondent examined the incision and stated to Mr. Panatela that it looked fine. Respondent did not diagnose any significant problems with Godly, and placed a belly wrap around the dog's abdomen to absorb any seepage. Mr. Panatela returned home with Godly. During the evening Goldie's condition continued to worsen. The dog remained listless and more fluid was discharging from the incision. The next morning, June 3, 1994, Mrs. Panatela discussed the dog's condition with her neighbor. Later that morning, at her neighbor's suggestion, the Panchals presented Godly to G. Brooks Buck, D.V.M., a veterinarian operating a clinic in Valrico, Florida. The Panchals informed Dr. Buck that Godly had been spayed on June 1, 1994, and that since the procedure was performed the dog had been abnormally listless, had difficulty going to the bathroom, and that significant amounts of fluid were discharging from the incision site. The Panchals did not inform Dr. Buck at this time that Respondent had performed the spay procedure on Godly. Dr. Buck's initial observation of the incision site revealed no problems, and the skin incision appeared well sutured; however, when Dr. Buck picked Godly up to place her on the floor a large amount of fluid, approximately one-half cup, discharged from the incision site. Dr. Buck then became very concerned, and recommended to the Panchals that the incision be reopened so that he could determine the cause of the fluid discharge. The Panchals agreed, and on June 3, 1994, Dr. Buck reopened the incision. During his surgery, Dr. Buck found no signs that the subcutaneous tissue layer had been sutured. Dr. Buck further observed that two-thirds of the caudal layer incision through the abdominal wall had been sutured with chromic catgut and steel; however, the final third of the caudal layer incision showed no sign of having been sutured. Dr. Buck observed fluid leaking through the unsutured portion of the caudal incision into the abdominal cavity. Inside the abdominal cavity Dr. Buck observed that the omentum appeared red and irritated, as did the peritoneal wall. Dr. Buck also observed a wad-like mass within the abdominal cavity which, upon closer inspection, he discovered to be a surgical sponge that had become surrounded by the omentum. Dr. Buck cut the retained sponge from the omentum and removed the sponge from the dog's abdomen. After removing the retained sponge, Dr. Buck further observed that the ovarian and uterine stumps were irritated, and that the right ovarian stump was leaking blood from a nicked artery. Dr. Buck sutured the ovarian and uterine stumps, as well as all three layers of incision, and discharged Godly. Godly recovered from Dr. Buck's surgery without further complications, and on June 13, 1994, Dr. Buck removed the sutures. Godly is now in good health. It is standard veterinary practice to count sponges before and after surgery. It is standard veterinary practice in a canine spay procedure to suture the subcutaneous layer of incision. It is standard veterinary practice in a canine spay procedure to completely suture the linea alba incision. Excessive discharge of fluid after a canine spay procedure indicates an abnormality. It is standard veterinary practice to recognize that excessive fluid discharge after a canine spay procedure indicates an abnormality and requires treatment. Findings as to Case No. 95-327 On Wednesday, July 27, 1994, Mrs. Nan Sherwood presented her cat, Mollie, to Respondent's clinic. Mrs. Sherwood informed the clinic staff that Mollie was acting unusually shy and had no appetite. At this time Mrs. Sherwood did not see or speak with Respondent. Mrs. Sherwood left Mollie at Respondent's clinic for treatment. Mrs. Sherwood was very concerned about Mollie's condition. When Mrs. Sherwood had not received any information from Respondent, she returned to Respondent's clinic on Friday, July 29, 1994. Mrs. Sherwood saw Mollie, observed that the cat's condition had worsened, and requested to speak to Respondent. A clinic staff technician told Mrs. Sherwood that Respondent would contact her later. Respondent did not, however, contact Mrs. Sherwood. When Mrs. Sherwood did not hear from Respondent, she placed a call to Respondent's emergency telephone number on the evening of July 29, 1994. Mrs. Sherwood did not hear from Respondent that evening. The next morning, Saturday, July 30, 1994, Respondent telephoned Mrs. Sherwood and informed her that the cat was being administered fluids, that diagnostic tests on Mollie were being conducted, and stated that she would call Mrs. Sherwood again on Sunday, July 31, 1994, between 11:00 a.m. and 1:00 p.m. On Saturday night, July 30, 1994, Respondent returned to her clinic and examined Mollie. At approximately 11:30 p.m., while Respondent was examining Mollie on the examination table, the cat died. The cause of death was advanced kidney disease and diabetes. The medical therapy administered by Respondent to Mrs. Sherwood's cat, Mollie, met acceptable standards of veterinary practice. After the cat's death, Respondent had the cat's body placed in the freezer at her clinic along with other animal remains scheduled for cremation. Due to a personal emergency, Respondent did not place a call to Mrs. Sherwood until after 3:00 p.m. on Sunday, July 31, 1994. At this time Mrs. Sherwood was in the shower, and her husband, Robert Sherwood, answered the telephone. Respondent informed Mr. Sherwood that the cat had died. Mr. Sherwood was very concerned that Respondent had been unresponsive to his wife and had failed to inform them in a timelier manner that the cat had died. Respondent asked Mr. Sherwood about the disposal of the cat's remains, and Mr. Sherwood informed Respondent that his wife would contact her later. Mr. Sherwood did not authorize cremation of the cat's remains. On Monday, August 1, 1994, Mrs. Sherwood spoke by telephone with Respondent. Mrs. Sherwood was interested in understanding the cause of her cat's death and why Respondent had not notified her earlier regarding the cat's death. Respondent told Mrs. Sherwood about her personal problems which had occurred on the weekend. Mrs. Sherwood was not satisfied with this explanation, but told Respondent she would come by for Mollie's body. Mrs. Sherwood did not authorize cremation of Mollie's body. On Wednesday, August 3, 1994, Mrs. Sherwood again spoke with Respondent by telephone. Mrs. Sherwood told Respondent she was coming to Respondent's clinic to pick up Mollie's body. At this time Respondent told Mrs. Sherwood that the cat's body had probably been taken on Tuesday for cremation, and that Mrs. Sherwood could come later to pick up the ashes. At this point Mrs. Sherwood became extremely upset because she had not authorized cremation of Mollie's remains. Mrs. Sherwood then called the offices of Petitioner to inform the Department of the circumstances surrounding Respondent's actions in regard to the death of Mollie. That same day, August 3, 1994, Mrs. Sherwood went to the Petitioner's office in Brandon, Florida, met with Diane Gusset, an agency investigator, and filed a statement detailing these events. Mrs. Sherwood also signed a form for Ms. Gusset authorizing the release of Mollie's records, as well as Mollie's remains, if still on the clinic premises. On Thursday, August 4, 1994, at approximately 10:00 a.m., Ms. Gusset, accompanied by Dennis Force, also an agency investigator, went to Respondent's clinic for the purpose of retrieving the records of Mrs. Sherwood's cat, and the cat's remains if on the premises. Upon arrival at the clinic, Investigator Force identified himself and Ms. Gusset to Respondent's staff as officials of the Department and requested access to the clinic. The staff went to inform Respondent about the presence of the Department investigators. During this time, the Department investigators proceeded into the clinic. Ms. Gusset entered the surgery area where Respondent was performing surgery. Ms. Gusset asked for the Sherwood records, but Respondent informed her the records were not on the premises. While inside the clinic, the investigators observed that the kennels had not been recently cleaned, and dogs in the outside kennels needed water. The investigators also saw eight containers of medication which appeared out of date; however, the medication containers contained small amounts of medicine, and there is no evidence that Respondent administered out-of-date medication. One container of hydrogen peroxide which appeared out of date was actually a reusable container. Ms. Gusset and Mr. Force also discovered the remains of Mrs. Sherwood's cat, Mollie, in the freezer at Respondent's clinic. By this time Respondent had contacted her attorney who requested Ms. Gusset and Mr. Force leave the clinic premises. After consulting with the Department's attorney, the investigators left the clinic. Respondent's clinic staff regularly cleans the premises. On the morning of August 4, 1994, when the Department investigators arrived, the clinic staff was in the process of, but had not yet completed, the cleaning of the kennel area. Respondent has instituted procedures in her clinic to monitor the dispensing of medications, and to update the effective dates of medications administered. There is no evidence Respondent administered outdated medication.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Veterinary Medicine enter a final order in DOAH Case No. 95-0324 suspending Respondent's license to practice veterinary medicine for a period of six months, placing Respondent on probation for a period of two years under supervised practice, imposing a fine of $1000, and requiring Respondent to attend additional continuing education courses in organizational skills, and veterinary medical therapy. It is further recommended that the Board of Veterinary Medicine enter a final order in DOAH Case No. 95-0327 dismissing the Administrative Complaint. RECOMMENDED this 17th day of January, 1997, in Tallahassee, Florida. Hearings Hearings RICHARD HIXSON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 17th day of January, 1997. COPIES FURNISHED: Miriam S. Wilkinson, Esquire James Manning, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael J. Kinney, Esquire KINNEY, FERNANDEZ and BOIRE, P.A. Post Office Box 18055 Tampa, Florida 33679 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Susan Foster, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Chase Carmen Hunter, committed the violations of the Florida Insurance Code alleged in the First Amended Complaint and, if so, the sanctions to be imposed.
Findings Of Fact The Department of Financial Services (Department) is the agency of the State of Florida having authority, among its other duties and responsibilities, to enforce the provisions of the Florida Insurance Code. The Division of Insurance Agents and Agency Services is a legislatively-created division of the Department, and is vested with the authority to administer chapter 626, Florida Statutes, and to enforce the provisions thereof. Respondent holds a license issued by Petitioner, No. E062693, as a Nonresident Life, Health, and Variable Annuity agent and as a Nonresident General Lines (Property & Casualty) agent. The license was initially issued on March 20, 2003. During all times relevant to this proceeding, Respondent was appointed as an agent of RLI Insurance Company, for the sale of property and casualty insurance. She held no other active appointments for the sale of property and casualty insurance until August 4, 2010, when she was appointed as an agent of the American Alternative Insurance Corporation. The insurance being sold by Respondent that forms the basis for Counts I through III of the First Amended Administrative Complaint were not insurance products of either RLI Insurance Company or American Alternative Insurance Corporation. Animal Liability Insurance Animal liability insurance is a specialty form of property and casualty insurance generally available only in the surplus-lines market, and not typically available through admitted carriers. Animal liability insurance is available for domestic and exotic animals. The Lester Kalmanson Agency The Lester Kalmanson Agency (Kalmanson Agency) is a Florida-based and licensed insurance agency, headquartered in Maitland, Florida, that has been in operation for more than 50 years. Since its founding, it has been predominantly involved with property and casualty insurance. Starting at the time Mitchel Kalmanson joined his father?s agency approximately 25 years ago, the Kalmanson Agency began to develop a specialized niche in animal mortality and liability insurance. The Kalmanson Agency is one of, if not the only agency in the country that offers commercial or individual mono-line animal-liability policies for domestic and exotic animals. Those specialty lines currently account for approximately 80 percent of the Kalmanson Agency?s business. The Kalmanson Agency is now well known for its ability to provide animal-liability insurance. It has received manuscripting ability through Lloyds of London, has created its own hazards and descriptions for animal-liability hazards, and has, over the years, developed and improved the unique forms used for writing animal-liability insurance. In 2009, Respondent contacted the Kalmanson Agency to become a retail agent for the agency. Respondent entered into a contractual producer?s agreement that allowed her to produce with the Kalmanson Agency. At some point thereafter, Respondent engaged in a series of practices designed to infringe upon the Kalmanson name, and to fraudulently and deceptively compete with the Kalmanson Agency in providing insurance marketed by Respondent as animal-liability insurance. Those actions included, but were not limited to Respondent misusing the Kalmanson Agency name to divert Kalmanson Internet business directly to her agency, and posting false information regarding the Kalmanson Agency and its officers and employees on her website. A detailed recitation of the facts and circumstances is not necessary -- suffice to note that Respondent was temporarily, and then permanently enjoined by the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida from using the Kalmanson name in any way, and has been held by the Court to be in Civil Contempt and indirect Criminal Contempt for her failure to comply with the lawfully entered injunctions. Assurant Specialty Property/American Bankers Insurance Company of Florida Assurant Specialty Property (Assurant) is the parent company of American Bankers Insurance Company of Florida (ABIC). ABIC is a Florida-admitted underwriting company that markets and sells property and casualty insurance, including renters? insurance, in Florida. ABIC has physical offices in Miami, Florida. ABIC is a “direct sale” company, meaning that it has designed its sales process to allow customers to directly access its website, fill out an electronic application, purchase insurance, and receive policy documents without having to use an agent. As a result, ABIC has appointed no agents to solicit, negotiate, or effect insurance contracts on its behalf. The only time a regular customer might use an “agent” to purchase ABIC insurance is if the customer contacted another insurance company with which ABIC has partnered, which companies include Geico and Esurance, and that company arranged coverage through ABIC. Such arranged coverage does not require or include a fee. ABIC has not partnered with Respondent. In order to become partnered with Assurant or ABIC, a person must enter into a written contract with the company. Respondent has not entered into a written contract with Assurant or ABIC. Among the items of information requested of a customer when insurance is obtained though the ABIC direct-sale website is the customer?s e-mail address. Upon completion of the application, the customer has the option of receiving the declaration page, the policy, and other insurance documents from ABIC by U.S. mail or by e-mail. ABIC imposes no additional charge to send insurance documents to its policy holders by U.S. mail. In conjunction with the Division?s investigation that resulted in these proceedings, Assurant determined that Respondent took out approximately 50 ABIC renters? insurance policies for Florida residents using the ABIC website and Assurant forms. In each instance, Respondent provided ABIC with her own e-mail address in the insurance application, and had the policy documents sent to her rather than to the policy holder. Assurant discovered through its own investigation that Respondent had altered declaration pages describing the coverage provided under policies issued by ABIC. The declaration page forms, and the other policy documents, are approved by the state of Florida. Assurant had not authorized Respondent to alter the ABIC declaration page forms in any way. When Assurant determined that Respondent provided customers with altered declaration pages, or had not provided customers with policy documents, it would contact the customers directly, provide them with all policy documents, and give them the option of cancelling the policy and receiving a refund if the actual coverage was not what they had requested or expected. Upon discovery of Respondent?s use of the direct-to- customer website, her collection of broker fees, her alteration of declaration pages, and her identification of herself as an ABIC agent, Assurant, through counsel, advised Respondent to stop such actions. Respondent refused to comply with Assurant?s request. Through at least February 8, 2013, Respondent continued to procure policies through the ABIC direct-to-customer website. After Assurant became aware of Respondent?s “chaseagency.com” domain, she began to use other domain names when she purchased policies through the Assurant system, which allowed her to have policy documents sent to her without detection. In the absence of an undisclosed animal bite history or other history of liability resulting from animals owned by an insured, general animal liability would be covered under an ABIC renters? insurance policy having liability limits of $100,000 or less. Thus, the issues in this case do not involve denial of claims. COUNT I - Donna Nolan Donna Nolan is a Florida-licensed insurance agent. She works for the Kalmanson Agency. Ms. Nolan owns a duplex that she purchased in 1992. Ms. Nolan lives in the “front house.” The “back house” was rented to Donna Jones and her daughter, Erin Jones, who lived there along with their miniature Doberman Pinscher, known as a “Min Pin.” Donna Jones died in early 2010. Erin Jones continued to live in the duplex. Ms. Nolan understood the Min Pin to be “a nipper,” and it had a habit of escaping and “running amuck in the neighborhood.” Ms. Nolan required Ms. Jones to obtain animal liability insurance to protect her in the event the dog was to bite someone. Ms. Nolan priced animal-liability insurance through the Kalmanson Agency. The annual premium was in the range of $400.00. That amount was more than Ms. Jones could comfortably afford. Ms. Nolan suggested that Ms. Jones research alternative providers, and allowed Ms. Jones to use her computer to do so. Ms. Jones found the “Chase Agency” online, which offered “canine insurance.” Ms. Nolan assisted Ms. Jones with the online application form. After submittal of the application, a quote was received from Respondent by e-mail. Ms. Jones decided to purchase animal-liability insurance through Respondent. Since Ms. Jones had no credit card or checking account, Ms. Nolan agreed to collect the premium from Ms. Jones in cash, and pay for the policy with her credit card. Ms. Nolan was charged $130.00 for the canine insurance policy, and $50.00 for the “broker fee.” Respondent obtained the insurance for Ms. Jones from the ABIC direct-to-customer website. Rather than purchasing specialized animal liability insurance as requested by Ms. Jones, Respondent procured standard renters? insurance from ABIC. Respondent entered Ms. Jones? personal information into the application but, rather than entering Ms. Jones? e-mail address, Respondent entered her own e-mail address. Respondent then elected to have all policy documents delivered by e-mail, which resulted in them being delivered to Respondent, and not to Ms. Jones as the insured policy holder. Respondent provided Ms. Jones with an ABIC declaration page via e-mail. The declaration page included three material alterations made by Respondent. The first alteration to the declaration page consisted of the following language, neatly printed and contained within a box at the top of the form, directly under the name and address of the issuing company: PURCHASED AT WWW.CHASEAGENCY.COM:: RETAIL AGENT: CHASE CARMEN HUNTER:: 4 PEACE PIPE LANE, FREDERICKSBURG, VA 22401 The second alteration to the declaration page consisted of the insertion of an entry for “Broker Fee $50.00” after the listing of the Total Premium of $130.00. Although Ms. Nolan testified that it appeared to her to be “different typing,” the undersigned finds the type style to be sufficiently similar to the adjacent text as to appear to be a part of the declaration page as prepared and issued by ABIC. The third alteration to the declaration page consisted of the following language, neatly printed and contained within a box at the bottom of the form, which covered the insurer?s authorized countersignature: TEL: 330-333-BUY3(2893)(CALLS & TEXTS) WWW.DANGEROUSDOGINSURANCE.COM THIS POLICY WAS ISSUED WITH THE FULL KNOWLEDGE THAT THE INSURED OWNS A DOBERMAN PINSCHER THAT IS NOT EXCLUDED The alterations, by their appearance, give the impression that they were printed on the declaration page as issued by ABIC. Since Respondent did not provide Ms. Jones with the original of her declaration page, it was not apparent that the alterations were performed by applying some form of appliqué or typed addition to the declaration page issued by ABIC. Rather, Respondent created the clear impression that ABIC had authorized Respondent to act as its retail agent, had authorized the assessment of a Broker Fee, had specific knowledge of Ms. Jones? dog, and had acknowledged that the dog was not excluded from coverage. None of those impressions were true. Ms. Nolan recognized the declaration page as one for a renter?s insurance policy, and not for an animal liability insurance policy. Ms. Nolan advised Ms. Jones that she had not received “canine insurance,” but had received a renter?s insurance policy, which she had not requested. Ms. Nolan called the number provided to her by Respondent in an effort to obtain a complete copy of the policy. The person with whom she spoke, who did not provide identification, refused to send the policy to Ms. Nolan, stating that to do so would cost too much in money and time, and stating that Respondent would maintain the policy in case a claim is made. Being dissatisfied with the telephone conversation, Ms. Nolan contacted ABIC. On June 9, 2010, Ms. Nolan faxed ABIC a recitation of the facts involved with the purchase of the policy, and provided ABIC with copy of the declaration page sent to Ms. Jones by Respondent. At some point, Respondent determined that Ms. Nolan, who was not the insured, worked for the Kalmanson Agency. Since the dispute between Respondent and the Kalmanson Agency had by this time become open, and thinking Ms. Nolan to be a “Kalmanson spy,” Respondent refunded the $50.00 broker?s fee. Upon request made by Ms. Jones on June 17, 2010, ABIC cancelled the policy, effective June 25, 2010, and refunded the full premium, which was credited to Ms. Nolan?s credit card. In her dealings with Ms. Jones and Ms. Nolan, Respondent acted as, and held herself out as an insurance agent of ABIC. Given the facts and circumstances of her dealings with Ms. Jones and Ms. Nolan, including her alterations of the ABIC declaration page to identify herself as the “retail agent,” her collection of a “brokers fee,” and her insistence on keeping the policy in order to manage claims, the only reasonable conclusion that can be drawn from her conduct was that she intended to convey the impression that she was appointed by ABIC to act as its agent in the sale of insurance. Respondent was not appointed by ABIC, nor was she authorized to act as an agent on its behalf. The only plausible inference that can be drawn from Respondent?s use of the name “CHASEAGENCY” on the altered declaration page, and her identification of herself as the “Retail Agent,” is that Respondent intended to act and to be perceived as acting as an insurance agency with regard to the solicitation and sale of Florida insurance. Respondent did not hold an insurance agency license or registration. The facts of this case demonstrate that Respondent, by her statements and by her alteration of the ABIC declaration page, willfully misrepresented the conditions and terms of Ms. Jones? insurance policy with the intent to deceive her about its true nature. By so doing, Respondent engaged in fraudulent or dishonest practices in the conduct of business under her license. By consciously altering the declaration page so as to hold the “CHASEAGENCY” out as an insurance agency, and herself out as an agent of ABIC, Respondent knowingly made false material statements regarding herself and the policy. The only reasonable explanation for Respondent?s method of providing insurance is that she desired to isolate Ms. Jones, the insured policy holder, from ABIC to the maximum extent possible so as to perpetuate Respondent?s pattern of deception and manipulation in the sale of insurance under her license. As a result of the foregoing, Respondent exhibited a lack of fitness and trustworthiness to engage in the business of insurance. COUNT II - Jacqueline Colon During the period of time relevant to this proceeding, Jacqueline Colon rented a home in Leesburg, Florida, where she lived with her husband. She owned two dogs when she first rented the home, without objection by the landlord. When she subsequently added a pit bull to her menagerie, her landlord required that she obtain liability insurance for the dog. Ms. Colon contacted her automobile-insurance company, Geico Insurance (Geico). She was advised that Geico did not insure for dangerous dog breeds. She thereupon searched the Internet for a provider. Ms. Colon?s search led her to Respondent?s website. On or about March 24, 2010, Ms. Colon spoke with Respondent regarding her desire for insurance to cover her pit bull. Respondent quoted Ms. Colon a premium of $174.03 for the insurance, and $50.00 as a fee, for a total quote of $224.03. Ms. Colon provided Respondent with her checking account information for the purchase of a policy, which included $100,000 in liability coverage, and $10,000 in personal property loss coverage. The policy premium of $174.03 was paid through Ms. Colon?s checking account. Respondent did not collect the additional $50.00 fee. It was Ms. Colon?s understanding when she purchased the policy from Respondent that she was purchasing insurance that was to specifically cover liability for injury caused by her dogs, i.e., “dangerous dog insurance per se.” Respondent obtained the insurance for Ms. Colon from the ABIC direct-to-customer website. Rather than purchasing specialized dangerous dog liability insurance as requested by Ms. Colon, Respondent procured standard renters? insurance from ABIC. Respondent entered Ms. Colon?s personal information into the application but, rather than entering Ms. Colon?s e- mail address, Respondent entered her own e-mail address. Respondent then elected to have all policy documents delivered by e-mail, which resulted in them being delivered to Respondent, and not to Ms. Colon as the insured policy holder. Respondent subsequently provided Ms. Colon with an ABIC policy declaration page via e-mail. The declaration page included material alterations made by Respondent. The alterations consisted of the following language, printed, and inserted into the declaration page: PURCHASED AT WWW.CHASEAGENCY.COM RETAIL AGENT: CHASE CARMEN HUNTER, 4PEACE PIPE LANE, FREDERICKSBURG, VA 22401 TEL: 330-333-BUY3(2893)(CALLS & TEXTS) 24-HOUR HOTLINE: 707-706-DOGS (3647)(CALLS & TEXTS) WWW.DANGEROUSDOGINSURANCE.COM THIS POLICY WAS ISSUED WITH THE FULL KNOWLEDGE THAT THE INSURED OWNS PIT BULL CANINE The alterations, though not as neatly inserted as the alterations to the declaration pages provided to Ms. Jones and Mr. Pierce, nonetheless give the impression that they were printed on the declaration page as issued by ABIC. By her alterations, Respondent created the clear impression that ABIC had authorized Respondent to act as its retail agent, and had specific knowledge of Ms. Colon?s pit bull. Those impressions were not true. The altered declaration page was accepted by Ms. Colon?s landlord as satisfactory to meet her requirement. Respondent did not provide Ms. Colon with a copy of her policy. After having received the altered declaration page, Ms. Colon and her husband determined that they should have more coverage for their personal property. Ms. Colon contacted Geico to obtain renters? insurance. She purchased the additional insurance and paid the first premium installment to Geico. In August of 2010, Ms. Colon was contacted by the Division?s investigator regarding the issues that are the subject of the Administrative Complaint. During the meeting, Ms. Colon realized that the renters? policy obtained through Geico was written by ABIC, as was the purported animal liability policy provided by Respondent. Ms. Colon called Assurant to inquire as to the coverage provided by the two policies. When it was determined that both policies covered the same risk, and that the policies would not each pay for any losses, ABIC refunded Ms. Colon?s paid premium for the policy that was obtained through Geico. Given the facts and circumstances of Respondent?s dealings with Ms. Colon, including her alterations of the ABIC declaration page to identify herself as the “retail agent,” and her discussion regarding the assessment of a fee, even though it was not collected, the only reasonable conclusion that can be drawn from her conduct was that she intended to convey the impression that she was appointed by ABIC to act as its agent in the sale of insurance. Respondent was not appointed by ABIC, nor was she authorized to act as an agent on its behalf. The only plausible inference that can be drawn from Respondent?s use of the name “CHASEAGENCY” on the altered declaration page, and her identification of herself as the “Retail Agent,” is that Respondent intended to act and to be perceived as acting as an insurance agency. Respondent did not hold an insurance agency license or registration. The facts of this case demonstrate that Respondent, by her statements and by her alteration of the declaration page, willfully misrepresented the conditions and terms of Ms. Colon?s insurance policy with the intent to deceive her about its true nature. By so doing, Respondent engaged in fraudulent or dishonest practices in the conduct of business under her license. By consciously altering the declaration page so as to hold the “CHASEAGENCY” out as an insurance agency, and herself out as an agent of ABIC, Respondent knowingly made false material statements regarding herself and the policy. The only reasonable explanation for Respondent?s method of providing insurance is that she desired to isolate Ms. Colon, the insured policy holder, from ABIC to the maximum extent possible so as to perpetuate Respondent?s pattern of deception and manipulation in the sale of insurance under her license. As a result of the foregoing, Respondent exhibited a lack of fitness and trustworthiness to engage in the business of insurance. COUNT III - Dirk Pierce At some time prior to June 2010, Dirk Pierce rented a home situated on five acres in Panama City, Florida. The property was zoned so as to allow him to keep his horses, along with a mule that he was boarding for a friend. As a condition of keeping his horses, Mr. Pierce?s landlord required that he obtain animal-liability insurance. Mr. Pierce consulted with his local insurance agent, but that agent did not offer a liability policy for animals. She suggested that Mr. Pierce search the Internet for a provider. Mr. Pierce?s search led him to the Chase Carmen Hunter Insurance Agency. While on-line, he filled out and submitted a short questionnaire. The next day, Respondent called Mr. Pierce. She quoted Mr. Pierce an annual premium of $463.28, plus a $50.00 “administration charge.” Mr. Pierce asked Respondent if he would be able to transfer the policy to another property. Respondent advised Mr. Pierce that the policy was transferable, and that he “just needed to call in.” Respondent also advised Mr. Pierce that, along with his yearly animal coverage, he would receive a “bonus” of $50,000 in renter?s furniture content coverage at no additional cost. Respondent further advised Mr. Pierce that if he ever had a claim on his purported animal-liability policy, he was to “go directly to her and contact her and her only, that she would handle it.” The only inference that can be drawn from Respondent?s insistence that she be solely responsible for handling any claims is that she wanted to isolate Mr. Pierce from contact with the insurer, and minimize the possibility that her deceptive conduct, described herein, would be discovered. Mr. Pierce completed the transaction by providing Respondent with his wife?s credit card number to pay for the policy. Respondent obtained the insurance for Mr. Pierce from the ABIC direct-to-customer website. Rather than purchasing specialized animal-liability insurance as requested by Mr. Pierce, Respondent procured standard renters? insurance from ABIC. Respondent entered Mr. Pierce?s personal information into the application but, rather than entering Mr. Pierce?s e- mail address, Respondent entered her own e-mail address. Respondent then elected to have all policy documents delivered by e-mail, which resulted in them being delivered to Respondent, and not to Mr. Pierce as the insured policyholder. On June 10, 2010, Mrs. Pierce?s credit card was charged $463.82 for the policy premium, along with a $50.00 “broker fee.” After the completion of the transaction, Mr. Pierce contacted Respondent to request a declaration page for the policy that he purchased. He advised Respondent that it was necessary that he provide his landlord with evidence of the animal-liability insurance policy. Respondent advised Mr. Pierce that she would provide him with the declaration page by e-mail or fax. On June 17, 2010, Mr. Pierce made inquiry by e-mail to Respondent as to why he had not received his policy. Mr. Pierce?s landlord was demanding proof of animal liability insurance by June 18, 2010, the failure of which was to be grounds for his having to move the horses. On the early afternoon of June 18, 2010, Respondent e-mailed the policy to Mr. Pierce with the message “I am attaching your policy. The original will not be mailed. If you give me your landlord name and address, I will mail the information to him/her as well.” The policy provided to Mr. Pierce was a renters? insurance policy issued by ABIC. Mr. Pierce testified that he received a small, four-page policy for his rental contents, but it said nothing about liability coverage for his horses. The declaration page included with the policy included two material alterations made by Respondent prior to her providing it electronically to Mr. Pierce. The first alteration to the declaration page consisted of the following language, neatly printed and contained within a box at the top of the form, directly under the name and address of the issuing company: PURCHASED AT WWW.CHASEAGENCY.COM:: RETAIL AGENT: CHASE CARMEN HUNTER:: 4PEACE PIPE LANE, FREDERICKSBURG, VA 22401 The second alteration to the declaration page consisted of the following language, neatly printed and contained within a box at the bottom of the form, which covered the insurer?s authorized countersignature: TEL: 330-333-BUY3(2893)(CALLS & TEXTS) WWW.CHASEAGENCY.COM THIS POLICY WAS ISSUED WITH THE FULL KNOWLEDGE THAT THE INSURED OWNS FOUR EQUINE THAT ARE NOT EXCLUDED The alterations, by their appearance, give the impression that they were printed on the declaration page as issued by ABIC. By not providing Mr. Pierce with the original of his policy, it was not apparent that the alterations were performed by applying some form of appliqué to the declaration page issued by ABIC. Rather, Respondent created the clear impression that ABIC had authorized Respondent to act as its retail agent, had specific knowledge of Mr. Pierce?s horses, and had acknowledged that the horses were not excluded from coverage. None of those impressions was true. Mr. Pierce recognized that the declaration page provided to him was not for the requested animal liability policy, but assumed it was for the “complementary policy which [he] didn?t even ask for that she threw in on the deal.” He continued to ask for a declaration page for the animal liability policy he was told he had purchased, to no avail. The renters? policy provided to Mr. Pierce contained little in the way of specific coverages for liability associated with Mr. Pierce?s horses. The ABIC renters? insurance policy is not an animal-liability policy, and was not the insurance requested by Mr. Pierce. Approximately 30 days after having purchased what he believed to be transferrable animal liability insurance, Mr. Pierce purchased a home with acreage for his horses. Mr. Pierce contacted Respondent to have the policy transferred to his new home, consistent with Respondent?s earlier representations. Respondent then advised Mr. Pierce that the policy could not be transferred so as to apply to his newly- acquired residence. Since the policy could not be transferred, Mr. Pierce asked that it be cancelled and his premium refunded. Respondent advised Mr. Pierce that the request to cancel the policy would have to be handled by her, and that it would take 60 to 90 days before he would receive a refund. Mr. Pierce never received a refund, and never received the animal-liability insurance he was promised. In her dealings with Mr. Pierce, Respondent acted as, and held herself out as an insurance agent of ABIC. Given the facts and circumstances of her dealings with Mr. Pierce, including her alterations of the ABIC declaration page to identify herself as the “retail agent,” her collection of a “brokers fee,” her insistence that all claims go through “her and her only,” and that she be solely responsible for payment and cancellation of the policy, the only reasonable conclusion that can be drawn from her conduct was that she intended to convey the impression that she was appointed by ABIC to act as its agent in the sale of insurance. Respondent was not appointed by ABIC, nor was she authorized to act as an agent on its behalf. The only plausible inference that can be drawn from Respondent?s use of the name “CHASEAGENCY” on the altered declaration page, and her identification of herself as the “Retail Agent,” is that Respondent intended to act and to be perceived as acting as an insurance agency. Respondent did not hold an insurance agency license or registration. The facts of this case demonstrate that Respondent, by her statements and by her alteration of the declaration page, willfully misrepresented the conditions and terms of Mr. Pierce?s insurance policy with the intent to deceive him about its true nature. By so doing, Respondent engaged in fraudulent or dishonest practices in the conduct of business under her license. By consciously altering the declaration page so as to hold the “CHASEAGENCY” out as an insurance agency, and herself out as an agent of ABIC, Respondent knowingly made false material statements regarding herself and the policy. The only reasonable explanation for Respondent?s method of providing insurance is that she desired to isolate Mr. Pierce, the insured policyholder, from ABIC to the maximum extent possible so as to perpetuate Respondent?s pattern of deception and manipulation in the sale of insurance under her license. As a result of the foregoing, Respondent exhibited a lack of fitness and trustworthiness to engage in the business of insurance. COUNT IV and COUNT V - Unfair Competition or Deceptive Trade Practices Count IV and Count V are based on the same conduct, described below, and seek relief under the same statutory provision, section 626.611(7).1/ Thus, for purposes of this Recommended Order, Count IV and Count V are considered as a single count for purposes of applying the penalty guidelines set forth in the conclusions of law. As a result of Respondent?s actions with regard to the Kalmanson Agency as described herein, the Kalmanson Agency filed suit against Respondent in the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida seeking injunctive relief. The Court entered a Temporary Injunction without Notice on February 3, 2009, and a Final Judgment for Permanent Injunctive Relief against Respondent on March 14, 2011. Those orders enjoined Respondent from, among other things, using the Kalmanson name in any way on any of her websites, from diverting customers and business by using the Kalmanson name, and from otherwise engaging in unfair competition or deceptive trade practices by using the Kalmanson name. On August 29, 2012, the Court entered an Order of Civil Contempt against Respondent for her continued violations of the Court?s Final Judgment for Permanent Injunctive Relief. On October 31, 2012, the Court entered an Amended Criminal Contempt Order against Respondent for her willful and contemptuous violation of the Court?s injunction, and her direct and intentional disobedience of the Court?s orders. As a result of Respondent?s willful and contemptuous disregard for the authority of the Florida courts regarding a matter arising from her marketing and sale of insurance in Florida, Respondent exhibited fraudulent and dishonest practices related to her Florida non-resident license, and exhibited a lack of fitness and trustworthiness to engage in the business of insurance.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED that the Department of Financial Services, Division of Insurance Agents and Agency Services, enter a Final Order revoking the license of Respondent, Chase Carmen Hunter, No. E062693, as a Nonresident Life, Health, and Variable Annuity agent and as a Nonresident General Lines (Property & Casualty) agent. DONE AND ENTERED this 26th day of June, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 26th day of June, 2013.
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 Whether disciplinary action should be taken against Respondent's license to practice veterinary medicine, license number VM-2404, based on the violations of Section 474.214(1), Florida Statutes, as charged in three separate Administrative Complaints filed against Respondent.
Findings Of Fact At all times pertinent to the allegations in these cases, Respondent was a licensed veterinarian, having been issued license number VM-2404, by the Florida Board of Veterinary Medicine. On March 18, 2000, Respondent performed a spay on Rudy, a six-year-old cat owned by Sharon and James Leonard. Respondent discharged Rudy to Sharon and James Leonard on March 18, 2000. On the following day, when Rudy was not feeling well, the family took Rudy to the emergency clinic where she was seen and treated by Dr. Mark Erik Perreault. When seen by Dr. Perreault, Rudy was wobbly and disoriented, and had pale mucous membranes. In addition, Dr. Perreault observed hair sewn into Rudy's incision site. Because the cat was very tender, it was anesthetized, and a careful examination of the incision was made. That examination revealed the incision had been closed with very large suture material. Because of the cat's condition and his observations, Dr. Perreault recommended and received approval to re-open the incision, and conduct an exploratory operation. This surgery revealed Respondent sutured Rudy’s uterine stump leaving approximately one and a half inches of tissue below the suture. This amount of "stump" is excessive and leaves too much material to become necrotic. Respondent had closed the skin and body wall incisions with excessively large suture material. Respondent secured the body wall and skin incisions with only two throws (knots) in each closing suture. Both Dr. Perreault and Dr. Jerry Alan Greene testified regarding standard of care. It is below the standard of care to sew hair into an incision site or allow hair to become sewn into the incision site because it contaminates the surgical site. It is below the standard of care for veterinarians to use oversized suture material to close the incision site because an excessively large suture leads to excessive inflammation as the body absorbs the excessively large suture material. It is below the standard of care for veterinarians to secure the skin and body wall incisions with less than 5 to 6 throws on their sutures to ensure that the sutures do not loosen or become untied. The potential problems of not using enough throws are exacerbated by using larger suture material which is more likely to loosen. It is below the standard of care to leave an excessive amount of "stump" in the body cavity. An excess of necrotic tissue causes excessive inflammation. Pertaining to Rudy, Respondent’s records contain the notation, "0.6 Ket." Respondent testified that this indicated that he administered Ketaset. Respondent’s records do not indicate whether the administration was intravenously, intramuscularly, or subcutaneously. Respondent testified that he administered the Ketaset intramuscularly. It was below the standard of care for Respondent to fail to indicate the amount of medication administered, i.e., milligrams, cubic-centimeters, etc.; and to fail to indicate the method of administration. Respondent is the owner of V.I.P. Baseline clinic, a veterinary establishment located at 505 Northeast Baseline Road, Ocala, Florida 34470. On August 31, 2002, Teresa McCartney presented her male, white Maltese dog, Puffy, to Respondent at V.I.P. Baseline Pet Clinic for neutering. Teresa McCartney owned no other male, white Maltese dogs. Respondent performed a neuter on Puffy at V.I.P. Baseline Pet Clinic on August 31, 2002. On August 31, 2002, V.I.P. Baseline Pet Clinic was not licensed to operate as a veterinary establishment by the State of Florida Board of Veterinary Medicine. Teresa McCartney picked up Puffy from V.I.P. Baseline Pet Clinic on August 31, 2002. Puffy bled for approximately four days after the neuter was performed. On September 4, 2003, Teresa McCartney presented Puffy to Dr. Mark Hendon for treatment. Upon examination, Puffy was bleeding from the prepuce and from the site of the surgical incision. In addition, there was swelling subcutaneously and intra-dermal hemorrhage and discoloration from the prepuce to the scrotum. The animal indicated pain upon palpation of the prepuce, the incision site, and the abdomen. Dr. Hendon presented the owner with two options: to do nothing or to perform exploratory surgery to determine the cause of the hemorrhage and bleeding. The owner opted for exploratory surgery on Puffy, and Dr. Hendon anesthetized and prepared the animal for surgery. The sutures having been previously removed, upon gentle lateral pressure, the incision opened without further cutting. A blood clot was readily visible on the ventral surface of the penis, running longitudinally the length of the penis and incision area. Dr. Hendon immediately went to the lateral margins of the surgical field, where the spermatic vessels and cord were ligated, and found devitalized and necrotic tissue on both sides of the surgical field which appeared to be abnormal. He explored those areas and debrided the ligated tissues, exposing the vessels and the spermatic cord which he ligated individually. He then proceeded to examine the penis. Dr. Hendon found upon examination of the penis a deep incision into the penis which had cut the urethra, permitting urine to leak into the incision site, causing the tissue damage which he had debrided. Dr. Hendon had not used a scalpel in the area of the penis prior to discovering the incised urethra in the area of the penis, and he could not have been the cause of the injury. Dr. Hendon catheterized Puffy, and closed the incisions into the urethra and penis. Puffy recovered and was sent home the following day. Drs. Hendon and Greene testified about the standard of care in this case. It is below the standard of care to incise the penis or urethra of a male dog during a neuter because neither the penis nor the urethra should be exposed to incision during a properly performed surgery. Respondent’s medical record for Puffy did not indicate the type of gas which was administered to Puffy or that Ace Promazine was administered to Puffy. Respondent's anesthesia logs reflect the animal was administered Halothane and administered Ace Promazine, a tranquilizer. Rule 61G18-18.002(4), Florida Administrative Code, requires that a patient’s medical record contain an indication of the drugs administered to a patient. On September 13, 2002, Department Inspector Richard Ward conducted an inspection of V.I.P. Baseline Pet Clinic. The inspection revealed that Respondent failed to provide disposable towels. It was further revealed that Respondent provided insufficient lights in the surgical area of the premises. Finally it was revealed that Respondent did not have an operational sink in the examination area of the premises. Rule 61G18-15.002(2)(a)4.c., Florida Administrative Code, requires that all veterinary establishments have sinks and disposable towels in the examination area. Rule 61G18-15.002(2)(b)2.d., Florida Administrative Code, requires veterinary establishments that provide surgical services to provide surgical areas that are well lighted. On September 4, 2002, Elaine Dispoto presented her male cat Cinnamon to Respondent at V.I.P. Baseline Pet Clinic, located at 505 Northeast Baseline Road, Ocala, Florida 34470. On September 4, 2003, Respondent practiced veterinary medicine at V.I.P. Baseline Pet Clinic by providing veterinary medical services to Cinnamon. On September 4, 2003, V.I.P. Baseline Clinic was not licensed by the State of Florida to operate as a veterinary establishment. Cinnamon was presented to Respondent with complaints of vomiting and dilated eyes. The owner expressed concern that the animal had been poisoned. Respondent apparently accepted that the animal had been poisoned, and formulated a plan of treatment, because he gave the animal an IV and administered one cubic centimeter of atropine to the animal, a common antidote for organophosphate poisoning. Respondent administered subcutaneously the IV's of Ringer's lactate to the cat. The owners picked up Cinnamon from Respondent, having heard a television news report which was unfavorable about Respondent. Respondent gave the cat to Mr. James Dispoto, who observed that the cat was not doing well, although Respondent indicated that the cat was doing better. Mr. Dispoto was sufficiently concerned about the status of the cat that he took the animal immediately to Ocala Veterinarian Hospital. There the cat was examined by Dr. Fleck. Dr. Fleck found that Cinnamon was in extreme distress; lying on his side and non-responsive to stimuli. A cursory examination indicated that the animal was very dehydrated, approximately 10 percent, and passing yellow, mucousy diarrhea, uncontrollably. His pupils were pinpoint and non-responsive. Upon calling Respondent, Respondent told Dr. Fleck that on the first day he had treated Cinnamon, he had given the cat atropine, dexamethasone, and lactated Ringer's subcutaneously. On the second day, he had given the cat another injection of dexamethasone, penicillin, and lactated Ringer's subcutaneously. Based upon her assessment of the animal, Dr. Fleck wanted to get some blood work to establish what kind of state the rest of the body was in and to start an IV. The owner's consented, and blood was drawn and an IV drip started of normal saline at 25 mils per hour. While the blood work was being started, the cat had a short seizure, and within five minutes, had another bad seizure, going into cardiac arrest and died. A necropsy was performed which was unremarkable. The only significant findings were that the cat was dehydrated. There were indications the cat had received fluids along the ventral midline. The bowels were totally empty and there were no substances within the stomach, intestines, or colon. There was slight inflammation of the pancreas. Samples were taken of the pancreas, liver, kidney, and lung. Analysis of these samples was inconclusive. A cause of death could not be determined. The clinical presentation was very indicative of organic phosphate poisoning. Organophosphates are the active ingredient in certain common insect and garden poisons. However, there were no findings that pin-pointed poisoning as a cause of death. Dr. Greene testified concerning his examination of the files maintained on Cinnamon by Respondent. They reflected Respondent administered one cubic centimeter of atropine on the first day and another cubic centimeter on the second day. Dr. Greene's testimony about the administration of atropine is contradictory. He testified at one point that, based on the cat's weight, a proper dose would be about 2.5 cubic centimeters and Respondent did not give enough; however, his answer to a question on cross-examination later indicated that the amount of atropine given was more in line with what was administered. Respondent faced a bad set of alternatives in treating Cinnamon. The cat presented with poisoning symptoms and suggestions of poisoning by the owners. He could run tests and try and determine exactly what was ailing the cat. However, if he did this without treating the possible poisoning, the cat might have died from the poison before he determined what was wrong with the cat. He could begin to treat the cat for poisoning based upon the owner's representations, and perhaps miss what the cat's problem was. He cannot be faulted for treating the most potentially deadly possibility first. It is noted that a full necropsy could not pinpoint the cause of the animal's problem(s). While Respondent may have run additional tests, they would not have been any more revealing. Atropine is the antidote for organophosphate poisoning and is helpful in controlling vomiting. It is clear from the file that Respondent's working diagnosis was poisoning. He treated the cat with the appropriate drug in approximately the correct dosage. Dr. Greene testified that it was a deviation from the standard of care not to administer fluids intravenously to Cinnamon because an ill patient may not absorb fluids through subcutaneous injection. Based upon Dr. Fleck's discussion of the issues involved in administering fluids intravenously, it does not appear nearly so clear cut as Dr. Greene suggests, but is a matter of professional judgment. Dr. Greene testified it was a deviation from the standard of care to administer lactated Ringer's solution to Cinnamon instead of sodium chloride or normal saline. Again, the choice of normal saline versus lactated Ringer's is one of professional judgment and not standard of care. Dr. Greene opined that it was a deviation from the standard of care to administer only 300ml of fluids to Cinnamon because 300ml is an insufficient amount of fluids to treat for dehydration or to even sustain Cinnamon under the circumstances. Dr. Greene assumed that the all of the hydration was via "IV." The testimony was that the cat did take some water orally; therefore, Dr. Green's predicate was flawed. Respondent administered dexamethsone to Cinnamon. Respondent failed to indicate that he administered dexamethasone in Cinnamon’s record. It is a deviation from the standard of care to fail to indicate the administration of dexamethasone in a patient’s record. Respondent administered penicillin to Cinnamon. Respondent’s records for Cinnamon indicate that he administered penicillin-streptomycin to Cinnamon. Respondent's records for Cinnamon indicate that Respondent did not check on the animal frequently, which, given his condition and the multiple problems which the cat was suffering, was a failure to render the standard of care necessary.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law reached, it is RECOMMENDED: That the Board enter its final order: Finding that Respondent violated the standard of care in treating Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(r), and imposing an administrative fine upon Respondent of $2,000 for each violation; Finding that Respondent violated the requirement to keep adequate records with regard to Rudy, Puffy, and Cinnamon, contrary to Section 474.214(1)(ee), and imposing an administrative fine upon Respondent of $1,000 for each violation; Finding that Respondent violated the requirement to obtain a license for a premises, contrary to Rule 61G18- 15.002(2), Florida Administrative Code, which is a violation of Section 474.214(1)(f), and imposing an administrative fine upon Respondent of $2,000; Finding that the record of Respondent's previous violations and the violations found above reflect that he is unqualified and unfit to practice veterinary medicine in the State of Florida, and revoking immediately his license, without leave to reapply; Requiring Respondent to pay costs incurred in the investigation and prosecution of these cases in the amount $5,697.96, plus the costs incurred at the final hearing; and Opposing any effort by Respondent to practice veterinary medicine while an appeal in this case is taken. 28 DONE AND ENTERED this 14th day of October, 2003, in Tallahassee, Leon County, Florida. S ___________________________________ STEPHEN F. DEAN 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 14th day of October, 2003. COPIES FURNISHED: Charles F. Tunnicliff, Esquire Tiffany A. Short, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Thomas V. Infantino, Esquire 180 South Knowles Avenue, Suite 7 Winter Park, Florida 32789 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 29 Nancy Campiglia, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 2399-2202
