The Issue Whether Respondent committed the violation alleged in the Administrative Complaint and, if so, what disciplinary action should be taken against him.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is now, and has been since June 6, 1994, licensed to practice veterinary medicine in the State of Florida. Respondent holds license number VM 6466 issued by the Board of Veterinary Medicine (Board). Respondent supports his family by practicing veterinary medicine. He is the family's sole wage earner. At its March 14, 2006, meeting, the Board took action, in Case No. 2003-93234, to suspend Respondent's license for 30 days. Following the meeting, but before the issuance of the Board's final order, Respondent's attorney, Bradford Beilly, Esquire, telephoned the Department of Business and Professional Regulation (Department) attorney who prosecuted the case before the Board, Drew Winters, Esquire. Mr. Beilly informed Mr. Winters that he would be filing, on behalf of Respondent, an appeal of the Board's final order, as well as a motion for stay, with the Fourth District Court of Appeal. Mr. Beilly then asked Mr. Winters if the Department would be opposing the motion for stay. Mr. Winters responded that he would "talk to others at the Department and get back to [Mr. Beilly]." When Mr. Winters "did get back" to Mr. Beilly, he told him that "the Department was not going to object to a stay." Mr. Winters and Mr. Beilly then had a discussion regarding what would happen if Respondent practiced veterinary medicine between the time the Board's final order took effect and the stay was obtained. Mr. Beilly misunderstood Mr. Winters to have said during their discussion that the Department would not "treat [Respondent's] practicing veterinary medicine from the [time] that the order was rendered and filed in Tallahassee to the time the appellate court issued . . . the [s]tay as practicing veterinary medicine under a suspended license." At no time did Mr. Winters ever make such a representation to Mr. Beilly.5 Mr. Beilly subsequently "advised [Respondent] of [his] discussion with Mr. Winters and told [Respondent] that there [would] not [be] a problem with him practicing between the entry of the final [order] and entry of the [s]tay."6 The Board entered its original Final Order in Case No. 2003-93234 (Original Final Order) on March 28, 2006. Mr. Beilly received a faxed copy of the Original Final Order the following day. On March 30, 2006, Mr. Beilly, on behalf of Respondent, filed a notice of appeal and motion for stay with the Fourth District Court of Appeal. The Fourth District Court of Appeal granted the motion for stay on April 4, 2006. Between March 28, 2006, and April 4, 2006, Respondent openly engaged in the practice of veterinary medicine. No charges were brought against Respondent for having practiced veterinary medicine with a suspended license during this seven-day period, inasmuch as the Department did not "catch [him] practicing." On July 25, 2007, the Fourth District Court of Appeal affirmed in part and reversed in part the Original Final Order, holding as follows: Based upon the above, the order of the Board is affirmed to the extent that it determined that Dr. Aleong's failure to timely file his request for an administrative hearing operated as a waiver of his right to such a hearing, and to the extent that it rejected Dr. Aleong's claim that the doctrines of equitable tolling and excusable neglect relieved him of the consequences of his untimely request for a hearing. The Board's order is reversed to the extent that it imposed a penalty greater than that provided for in the disciplinary guidelines, and the matter is remanded for the Board to either impose a penalty within the guidelines or to make written findings which support the imposition of a harsher penalty. Aleong v. Department of Business and Professional Regulation, 963 So. 2d 799, 802 (Fla. 4th DCA 2007). On remand, the Board chose not to impose a lesser penalty. Its Amended Final Order in Case No. 2003-093234, which was filed with the Clerk of the Department on April 7, 2008, read as follows: THIS CAUSE came before the Board of Veterinary Medicine (Board) on March 18, 2008, in Ft. Lauderdale, Florida, for consideration upon a remand from the District Court of Appeal of the State of Florida, Fourth District. In its written opinion the Court affirmed this Board's Final Order filed on March 28, 2006, in all regards except with respect to the penalty imposed. With respect to the penalty, the Court reversed the penalty and remanded the case to the Board with directions that the Board either impose a penalty within its disciplinary guidelines or make written findings which support the imposition of a harsher penalty. The Board chooses the latter. Section 455.2273, Florida Statutes, requires the Board to make written findings as to the aggravating circumstances which were the basis for its deviation from the recommended guidelines penalty. The Board finds that the aggravating circumstances which justify imposing a harsher penalty are as follows: Respondent has had two prior actions taken against his license by this Board. Those cases are DBPR Case Number 2001-04949 and DBPR Case Number 2003-057847. [See Rule 61G18-18.001(4)(c), Florida Administrative Code.] One of the violations in the previous case[s] was the same violation as the violation is this case: failing to keep accurate medical records as required by Section 474.214(1)(ee), Florida Statutes, and Rule 61G18-18.002, Florida Administrative Code. (Case Number 2[0]0[1]- 04949)(T26)[See Rule 61G18-18.001(4)(i) and (j), Florida Administrative Code.] Respondent admitted on the record at the hearing that he had not timely complied with the Final Order in a case which had come before the Board just six months prior to the meeting at which the penalty in this case was imposed. (T26, 28)[See Rule 61G18- 18.001(4)(c), (h), (i), and (j), Florida Administrative Code.] Furthermore, Respondent was on probation at the time the instant case came before the Board for action. (T28)(See Rule 61G18- 18.001(4)(h) and (j), Florida Administrative Code.] The discussion by the Board members clearly indicated that the Board believed Respondent was not "getting the message" that he had to comply with the regulations. As expressed during the discussions, "So I think that we have to send a message, a strong message that he has to do that from now on." (T27)(See also T 28). And later in the discussion, another Board member asked: How can we leave a message that he has to have complete [sic] the complete record so another veterinarian can go behind you and know exactly what was done to that horse day by day, document whether the horse - or not document what he saw, how he came to that conclusion. If a dog comes in I can't say he is sick and this is what I did. I have to say, well, he was limping on his right front limb. I have to explain it, or whatever, you have to document how you came to those conclusions. (T31)[See Rule 61G18-18.001(4)(f)(j)(a), Florida Administrative Code.] WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED THAT: Respondent shall pay COSTS of $542.42, FINES of $3,000.00, and take and pass the applicable laws and rules examination at Respondent's own expense no later than thirty (30) days after the filing of this Order with the Department's Clerk. Payment of said costs and fines shall be mailed to the Board of Veterinary Medicine, Department of Business and Professional Regulation, 1940 North Monroe Street, Tallahassee, FL 32399-0792. Respondent shall be required to take an additional five (5) hours of continuing education related to the area of medical records within six (6) months after the filing of this Order. Respondent's license is suspended for a period of thirty (30) days. This Final Order shall take effect upon being filed with the Clerk of the Department of Business and Professional Regulation. At the end of the Amended Final Order was the following "Notice of Right to Judicial Review": A party who is adversely affected by this Final Order is entitled to Judicial Review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk of the Department of Health [sic] and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the district court of appeal in the appellate district where the party resides. The notice of appeal must be filed within thirty (30) days of rendition of the order to be reviewed. Respondent and Mr. Beilly attended the March 18, 2008, meeting at which the Board decided to take the action it subsequently memorialized in the Amended Final Order. After the meeting, Respondent authorized Mr. Beilly to seek appellate review and a stay of the Board's action. Mr. Beilly received a copy of the Board's Amended Final Order on April 9 or 10, 2008, and he faxed a copy to Respondent, who read it. After receiving the Board's Amended Final Order, Mr. Beilly spoke with Jennifer Tschetter, Esquire, the Department attorney who "would be handling the appeal of the [A]mended [F]inal [O]rder." Ms. Tschetter advised Mr. Beilly that the Department "would have no objection to a stay of the [A]mended [F]inal [O]rder being entered" by the appellate court. During their conversation, Mr. Beilly and Ms. Tschetter did not discuss whether Respondent would be able to lawfully practice prior to the entry of the appellate court's stay. It is undisputed that "Respondent practiced as a veterinarian at Calder Race Track and at other venues, [from] April 10 [three days after the Amended Final Order took effect] through April 2[3], 2008."7 There is no evidence that Respondent's practicing veterinary medicine during this period of time resulted in damage to any person, animal, or thing. At the time Respondent engaged in this activity, he believed, based upon the advice that he had previously been given by Mr. Beilly, that he was not doing anything wrong. It was his understanding that he "had 30 days to file an appeal [of the Amended Final Order] before [his] license was suspended" and that he "was allowed to practice while he applied for an appeal [and a] [s]tay." On April 23, 2008, upon being informed by a Department investigator that his license was "under suspension" and that he therefore was "not allowed" to practice, Respondent "stopped working." Respondent immediately telephoned Mr. Beilly, who filed, on behalf of Respondent, a Notice of Administrative Appeal of Amended Final Order and a Motion to Stay with the Fourth District Court of Appeal that same day, April 23, 2008. The appeal was docketed as Case No. 4D-08-1624. On April 24, 2008, the Fourth District Court of Appeal issued the following order in Case No. 4D-08-1624: BY ORDER OF THE COURT: ORDERED that appellant's motion filed April 23, 2008, for stay pending appeal on expedited basis is granted. The enforcement of the Amended Final Order rendered on April 7, 2008, by the State of Florida Board of Veterinary Medicine is stayed pending the disposition of the above-styled appeal. Respondent's appeal of the Amended Final Order is still pending. On May 15, 2008, Department Investigator Russell Lambert sent Respondent a letter advising him that the Department was investigating the following complaint that had been assigned DBPR Case No. 2008-028603: Alleged violation of FSS 474.213(1)(e) use [of] a license that has been suspended. On 4/22/08 and 4/23/08 a sweep was conducted at the Ocala Breeders Sale. On 4/23/08, the Gainesville investigative office was notified that the Resp[ondent] was possibly working there and that his license had recently been suspended. On 4/23/08 at approximately 7:00 AM, investigators observed Dr. Aleong enter stall number 60, Building 17 and scope a horse with HIP Number 1025 owned by a person known as Hal Hatch. After Dr. Aleong completed the process and exited the stall, investigators approached him and referenced the status of his license, at which time Dr. Aleong stated that he was not aware that his license had been suspended. Dr. Aleong's wife, Pamela, was also present and advised that the horse was being scoped for her sister Christine Wasilewski. On May 20, 2008, Department Investigator Beatriz Caldera sent Respondent a letter advising him that the Department was investigating the following complaint that had been assigned DBPR Case No. 2008-029108: Alleged Violation of F.S. 474.213(1)(e) practicing on a suspended license. On 4/24/08 Investigator Caldera visited Calder Race Track and found evidence which revealed that Dr. Aleong treated and prescribed medicine for horses at the track between 4/10/08-4/24/08. Dr. Aleong's license was suspended at the time. The Administrative Complaint that is the subject of the instant proceeding was filed in DBPR Case No. 2008-029108 on or about August 26, 2008. On November 13, 2008, Department Assistant General Counsel Elizabeth Duffy, Esquire, sent a letter to Respondent's attorney, Mr. Beilly, advising him of the following concerning DBPR Case No. 2008-028603: Please be advised the above-referenced case [DBPR Case No. 2008-028603] has been reviewed by the Department and closed without a finding of probable cause to believe your client violated the provisions of chapter 474, Florida Statutes, and/or the rules promulgated pursuant thereto. The case has been closed without prejudice[;] if the Department receives additional evidence or determines, upon further review, that the determination to close was in error, the Department reserves the right to reopen the case. If the case is reopened, you will be promptly notified. As this case has been dismissed without a finding of probable cause, the materials included within the file are confidential and may not be disclosed to the public without your written permission. Please contact me if you have any questions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board issue a Final Order: (1) finding Respondent guilty of violating Section 474.213(1)(e), Florida Statutes, and Section 474.214(1)(f), Florida Statutes; (2) suspending his license for a period of 17 days; (3) fining him $1,000.00; (4) placing him on probation for a year; and (5) ordering him to reimburse the Department's investigative and prosecutorial costs. DONE AND ENTERED this 1st day of July, 2009, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 1st day of July, 2009.
The Issue The cause was initiated upon the filing of a Petition for Award of Attorney’s Fees and Costs, pursuant to Florida Statutes 57.111. A formal hearing was originally scheduled for Gainesville, Florida, however, pursuant to agreement of the parties it was dispensed with. The parties stipulated to the record to be considered in this proceeding, agreeing upon exhibits and upon a time period for submission of proposed final orders. The appearances were as follows.
Findings Of Fact The Petitioner, Samy H. Helmy, was a licensed veterinarian in the State of Florida at all times pertinent hereto. The license was suspended by Final Order of the Board of Veterinary Medicine on or about August 3, 1990 and the suspension was upheld on appeal. That Final Order became a Final Decision upon the Court’s Mandate and Notice issued on December 26, 1991. On or about February 21, 1992 Mr. Henry Scheid, in his capacity as an investigator for the Department of Business and Professional Regulation, Board of Veterinary Medicine, (DBPR) set up a “sting operation” in which he attempted to apprehend the Petitioner in activities which could be construed as unlawfully practicing veterinary medicine with a suspended license. Mr. Scheid’s investigative report is an exhibit by stipulation in this proceeding. Mr. Scheid acknowledges in this report that another person, Dr. S. Strahler was present on the Petitioner’s veterinarian practice premises at the time he made his investigation. Mr. Scheid also recounts in his investigative report that although the Petitioner examined the animal which was involved in the sting operation, when it became necessary to give an injection to the animal, an employee of the veterinary practice who proved to be Dr. Strahler, was called in to actually perform the injection. It does appear that the investigator, Mr. Scheid, was aware that a licensed veterinarian was practicing on the premises. He would thus seem to have been aware that Dr. Strahler may have been in a position to supervise Dr. Helmy’s practice under his suspended license. However, there is also contained in the investigative report a statement by the investigator to the effect that he interviewed Dr. Strahler. Dr. Strahler indicated that he had only worked on Dr. Helmy’s premises for several days in February 1992 and that indeed, Dr. Helmy had performed surgeries without Dr. Strahler’s assistance, which could reasonably be interpreted by Mr. Scheid that Dr. Helmy might have been performing veterinary practice in an unsupervised way. In the investigator’s report, page 10, reference is made to his interview with RFS (Dr. Strahler) as follows: “On February 27, 1992 investigator made phone contact with RFS. He advised he had only worked for subject; February 14, 1992, Friday, all day; February 15, 1992, Saturday, one-half day; and February 21, 1992, Friday, all day. During questioning RFS, with hesitation, did advise that subject was conducting surgeries, with or without RFS assistance. Further advised, he would cooperate as the last day he worked subject, he found out that subject’s license was suspended. After contacting investigator Sowder, Marion County Sheriff’s Office, a meeting with State Attorney for a sworn statement was set for March 4, 1992, at 2:00 p.m.” There are a number of interviews of animal owners who took their animals to Dr. Helmy, for examination and/or treatment. Descriptions of these interviews are recounted in the investigator’s report. The results of those interviews indicate that Dr. Helmy, was performing veterinary practice in terms of diagnosing, taking blood samples, and performing various aspects of treatment. (See the Respondent’s proposed Findings of Fact numbers six through sixteen, adopted here by reference). Although Dr. Helmy, could perform veterinary practice. under the statute cited below, so long as he was supervised by a duly licensed veterinarian in good standing with the Board, the interview of Dr. Strahler (“RFS”) indicates that indeed he may have been practicing without any supervision on some occasions. The important point is that the investigator had sufficient investigative facts to have a good faith belief that he had discovered the Petitioner, practicing with a suspended license, without proper supervision by a duly licensed veterinarian on the premises. He could thus reasonable conclude then that the Petitioner was not in compliance with the statute concerning supervision cited below. After his visits to the premises and contact with law enforcement authorities, Mr. Scheid filed the subject report on approximately April 19, 1992. Thereafter, the investigation apparently remained an open or active investigation, but as far as the evidence in this case shows, no administrative complaint was filed for a substantial period of time. In fact, on September 10, 1993 Nancy M. Snurkowski as chief attorney for the agency signed a document called a “Closing Order” on behalf of George Stuart, Secretary of the Department. That Closing Order indicates that the complainant, the agency, had alleged that the subject, Dr. Helmy, had violated Sections 474.213(1)(f) and 474.215(3), Florida Statutes (1991) for operating a veterinary establishment when the responsible veterinarian’s license had been suspended, or by knowingly employing an unlicensed person or persons in the practice of veterinary medicine. The Closing Order implies that the investigation substantiated the complaint in that the subject was a veterinary establishment operated by Dr. Helmy when his license to practice had been suspended. The Closing Order accounts that he continued to practice despite that suspension. The Closing Order states that he continued to practice despite that suspension. The Closing Order also states that: “[T]he establishment now lists Robert F. Strahler, DVM as a responsible veterinarian. Robert F. Strahler, DVM is a Florida-licensed veterinarian in good standing with an active license. He acquired the facility and premises permit number of VE0002026 on August 27, 1992. The previous permit number VE0001793 is no longer valid.” “The law: “Based on the foregoing, probable cause does exist at this time to believe that the subject was in operation while its responsible veterinarian’s license was suspended and it employed unlicensed individuals in the practice of veterinary medicine. However, since the unlicensed activity has been stopped and the responsible veterinarian holds a valid active license in good standing, this case will be closed.” Thus on September 16, 1993 apparently the agency elected to terminate the prosecution with this “Closing Order”. The agency however, does not admit in that Closing Order that probable cause to believe that unauthorized veterinary practice done by the Petitioner did not exist. Rather, it merely indicates that, since the investigation was commenced, Dr. Strahler had become a licensed supervising veterinarian, or a “responsible veterinarian” in good standing for the establishment. Therefore the violation previously believed to have been found by Mr. Scheid had been alleviated at that point. That Closing Order appears to have been merely the determination of the investigation at that point. The evidence before the Administrative Law Judge does not actually indicate that a formal administrative complaint, based upon a probable cause finding by the Board, had been made at that time or previously. Nevertheless, in a probable cause panel meeting of November 30, 1993 (by telephone conference call) (the transcript of which is stipulated into evidence in this proceeding as Exhibit 3) probable cause to file an proceed on the administrative complaint which gave rise to this case was found by the Board of Veterinary Medicine. This may seem a harsh determination, since the Chief Attorney with the Board had recommended terminating the prosecution prior to that probable cause finding. However, the investigative report and related documents indicate that there was adequate reason to believe that unauthorized veterinary practice by Dr. Helmy had been conducted on the premises on and around the time when Mr. Scheid made his visitor visits to the premises and interviews of customers and others. Thereafter, prosecution of the administrative complaint proceeded, (albeit slowly). Thus the Board litigated this case in 1993 until 1996. There is no question with attorney’s fees and costs were incurred by the Respondent (Dr. Helmy) in that administrative complaint case during that time. In fact, there is no dispute about the reasonableness of the fees and costs claimed in this proceeding. After attempting to conduct a hearing, but after at least one continuance, and before the case proceeded to formal hearing, the complaint was voluntarily dismissed by the prosecuting agency on June 5, 1996. Dr. Helmy made no admissions or agreements at any time to prompt the Department of file the motion for dismissal on the basis of a negotiated settlement. A related criminal case was proceeding during 1992 through 1994 in the Fifth Judicial Circuit for Marion County Florida. Dr. Helmy was being prosecuted by the State based upon the same set of factual circumstances developed by Investigator Scheid. A Motion to Dismiss was filed by defense counsel in that case and the Circuit Court granted that motion based upon an undisputed set of facts which are the same underlying facts that gave rise to the administrative complaint in the formal proceeding underlying this attorney’s fee case. The circuit judge in that proceeding dismissed the criminal case against Dr. Helmy on January 27, 1995, finding that Dr. Helmy was providing supporting assistance under the supervision of responsible, duly- licensed veterinarian, who acted as a responsible veterinarian as defined by Chapter 474 Florida Statutes. The Circuit Judge found that the Petitioner’s actions at the times pertinent to the criminal proceeding and the administrative prosecution were lawful since they were done under the supervision of a duly- licensed, active practicing veterinarian. The Administrative Law Judge ruled upon the Motion to Dismiss, and a subsequent motion, which raised the issues of collateral estoppel Res Judicata made by Dr. Helmy’s attorney in the formal proceeding underlying this attorney’s fee case. It was thus determined that the principals of collateral estopped and Res Judicata did not apply due to lack of mutuality of parties, etc. Accordingly, the administrative proceeding continued to remain active for sometime until the agency, on its own motion, voluntarily dismissed the matter on June 5, 1996. It is true as Petitioner contends, that a deputy sheriff from Marion County, as well as Mr. Scheid, testified by deposition that their opinions concerning Dr. Helmy’s guilt of unauthorized practice of veterinary medicine would be different if they assumed that his actions were performed under the immediate supervision of a licensed veterinarian. Dr. Gary Ellison, an expert witness for the Department in the Helmy case acknowledged, in his deposition, essentially the same thing that if “everything in the complaint” had been done under the immediate supervision of a licensed veterinarian then Dr. Helmy would not have broken the law. The fact remains, however, that at the time the investigation was commenced and Mr. Scheid conducted his interviews and conducted his operation on the then Respondent, Dr. Helmy premises, he had a reasonable belief that a violation had taken place. His conversation with Dr. Strahler himself could give him a good-faith belief that Dr. Strahler indeed did not truly supervise Dr. Helmy. Thus, the Board, at the time probable cause was found in the administrative complaint was filed, had a reasonable basis in fact and in law to proceed against Dr. Helmy, even if it was later determined that in fact, his practice on those premises had been lawful. While it may seem unduly harsh for the Board to find probable cause after its chief attorney had recommended closing of the investigation, the fact remains that, at the time probable cause was found there was substantial justification for the Board to believe that unauthorized veterinary practice had been conducted by the Petitioner on the premises. The language of the “Closing Order” does not obviate such a finding. Finance evidence into this proceeding in the form of Dr. Helmy’s tax returns for 1993 and 1994, as well as other evidence (see Exhibit 12) show that the Petitioner does not have a net worth of more than $2,000,000. The evidence, in its totality also shows that Dr. Helmy was operating a sole proprietorship of a professional practice dispensing veterinary services, at “Highway 200 Animal Hospital” at the time of the initiation of the Board’s action. This is documented in the investigative report and by the registration certificate for the veterinary establishment included in the record of this case as stipulated Exhibit 12. In fact, Dr. Helmy had entered into a business lease for the premises where he located to Highway 200 Animal Hospital with the lease specifying that the premises were to be occupied for a veterinary office, and the lease beginning June 15, 1990 and continuing through June 14, 1995. Thus, at all times pertinent hereto, Dr. Helmy had a lease for a business establishment operating as a veterinary practice from 1990 through 1995. His veterinary practice was not incorporated nor was it a partnership. It can only be inferred from the evidence available that it was a sole proprietorship of Dr. Helmy.
Recommendation Accordingly, having considered the foregoing findings of fact and conclusions of law, the preponderant evidence of record and pleadings and arguments of the parties, it is therefore ORDERED that the petition of Samy Helmy, D.V.M. is denied.DONE AND ORDERED this 6th day of January, 1997, at Tallahassee, Florida. COPIES FURNISHED: Robert A. Rush, Esquire 426 N.E. First Street Gainesville, Florida 32601 James E. Manning, Esquire Department of Business and Professional Regulation P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1997. 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Susan Foster Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issues in this case are whether the Respondent, Thandaveshwar Mysore, D.V.M., committed the violations alleged in an Administrative Complaint, DPBR Case Number 2005-005136, filed by the Petitioner Department of Business and Professional Regulation on October 19, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact The Parties. Petitioner, the Department of Business and Professional Regulation (hereinafter referred to as the "Department"), is the state agency charged with the duty to regulate the practice of veterinary medicine in Florida pursuant to Chapters 455 and 474, Florida Statutes. At the times material to this proceeding, Thandaveshwar Mysore, is and was a licensed Florida veterinarian, having been issued license number VM5191. Dr. Mysore has been licensed in Florida as a veterinarian for approximately 20 years. At the times material to this proceeding, Dr. Mysore’s address of record was 8904 North Military Trail, Palm Beach, Florida 33410. Dr. Mysore obtained his veterinary degree in 1957. He taught veterinary medicine as an associate and assistant professor for approximately 19 years prior to moving to the United States. He has published more than 50 articles in veterinary journals. At the times relevant to this matter, Dr. Mysore’s practice was exclusively small animals, primarily dogs and cats. He has successfully performed thousands of spays on dogs and cats without incident. Dr. Mysore’s Treatment of Ricochet. On October 13, 2004, Rita Gurskin took her nine-month old female dog “Ricochet” and three other animals to be spayed and/or neutered by Dr. Mysore. Having examined Ricochet, Dr. Mysore sedated her pursuant to his normal protocol and performed a routine surgical spay. Ricky Joe King, who has assisted Dr. Mysore on a number of occasions, witnessed the procedure. The surgical area was cleaned by Dr. Mysore with Betadine and alcohol. Mr. King has been present and assisted Dr. Mysore in between 70 to 100 spay procedures. He has some understanding of the need to ensure that a surgical area is free of debris, and, in particular, hair. Both Dr. Mysore and Mr. King believed that the surgical area on Ricochet had been properly cleaned and prepared. Neither noticed any hair inside the incision in Ricochet at any time prior to or during closure of the incision. Following the procedure, Ms. Gruskin came to Dr. Mysore’s office to pick up Ricochet. While the testimony concerning Ricochet’s condition at that time conflicted, the more convincing testimony was that of Ms. Gruskin. According to Ms. Gruskin, Ricochet was lethargic and had to be assisted out of the office. While taking Ricochet to her vehicle Ms. Gruskin noticed what she believed was blood oozing from the incision. She pointed this out to Dr. Mysore, who assured her it was normal and told her not to worry about it. Dr. Brinkman’s Treatment of Ricochet. Following the October 13th surgical procedure, Ricochet was lethargic and had little appetite. The incision was inflamed and oozed blood and puss. Concerned about Ricochet’s condition, Ms. Gruskin took the dog to her regular veterinarian, Ted Brinkman, D.V.M., on October 15, 2004. Dr. Brinkman examined Ricochet. Ricochet’s temperature was 103.6F, she had an elevated white blood count, and the area around the incision area was swollen. Dr. Brinkman concluded that the incision would need to be repaired but that, because Ricochet’s condition was not critical and she had only recently undergone the surgery, recommended that no surgery be performed on Ricochet at that time. Ms. Gruskin agreed and Dr. Brinkman began a treatment with antibiotics. Ms. Gruskin returned to Dr. Brinkman’s office with Ricochet on October 22, 2004. Ricochet’s condition had not improved. Her white cell count had risen and the incision area was swollen and puffy. Dr. Brinkman recommended surgery, which Ms. Gruskin agreed to. As Dr. Brinkman began to open the incision, he found that the skin on the sides of the incision was not healing edge to edge. The skin had rolled in on itself and Dr. Brinkman was able to pull the incision apart easily. This was a result of the incision not having been property closed. The area of the incision had swollen to the size of a grapefruit. After opening the incision site, Dr. Brinkman found a “huge seroma of pussy infected nasty tissue.” There was also a “huge strange looking nest of hair” which consisted of hundreds of loose hairs inside the incision. According to Dr. Brinkman, there was a dead space in Ricochet which was filled with serum, the area was infected and raw looking, and was “hamburger like.” Dr. Brinkman removed the mass of hair and the infected, necrotic tissue and closed the incision. On November 11, 2004, Dr. Brinkman’s sutures were removed and Ricochet was discharged from Dr. Brinkman’s care. Ricochet made an uneventful recovery from the surgery performed by Dr. Brinkman. Ultimate Findings. While no one witnessed precisely how the hairs found by Dr. Brinkman when he opened Ricochet’s incision ended up inside Ricochet, the only logical conclusion that can be reached under the facts of this case is that the hairs were left in the site when Dr. Mysore performed the spay on Ricochet on October 13, 2004, and, unnoticed by Dr. Mysore or Mr. King, left inside the surgery site when it was sutured. There simply is no other plausible explanation. Admittedly, Dr. Mysore performed surgery on Ricochet. At the conclusion of that surgery, Dr. Mysore closed upon the surgery site. While neither Dr. Mysore nor Mr. King saw any hair in the open wound, Ricochet was covered with a drape which could have easily have blocked their view or they simply did not look closely. Just because they did not see the hair, does not mean that it was not there. Once the incision had been sutured by Dr. Mysore, the evidence failed to prove that the amount of hair found by Dr. Brinkman could have gotten into the surgery site in any other manner than by having been left in the site before the incision was sutured. The foregoing findings are further supported by Dr. Greene’s opinion testimony as to the likely circumstances under which the hairs could have gotten between Ricochet’s abdominal muscles and skin. It is also found that the tissue discovered by Dr. Brinkman inside the incision cavity was necrotic tissue and that it occurred as a direct result of the surgery performed by Dr. Mysore. This finding is based upon the opinion testimony of Dr. Greene, which was premised upon Dr. Brinkman’s credible description of the tissue he found inside Ricochet when he performed his surgical procedure. The necrotic tissue found by Dr. Brinkman was caused by the presence of the hair left inside the incision by Dr. Mysore. Again, this is the only plausible explanation for the “hamburger like” tissue found by Dr. Brinkman. Dr. Mysore’s Medical Records. Dr. Mysore failed to record the breed and species of Ricochet in the “heading” of the “Examination Records” he maintained on Ricochet. It was noted, however, that Ricochet was a “dog” in the body of those records. Ricochet was also identified by species and breed (although not with consistency) in the Surgery Authorization form for Ricochet’s surgery and on receipts of payment for services. Dr. Mysore also failed to record Ricochet’s temperature in his medical records. Although, if Ricochet’s temperature had been within the normal range, his failure to record her temperature would not have caused any “damage per se,” taking the temperature of an animal and recording it are a normal part of the required physical examination of the animal, which in turn is required to be included in an animal’s medical records. During Ricochet’s surgery, she was administered the drugs Atropine and Acepromozine. Dr. Mysore noted in Ricochet’s medical records that the drugs were given and recorded the amount given for both drugs combined (3cc’s). Dr. Mysore did not describe in the medical records the amount of the individual dosages of the two drugs given to Ricochet. Dr. Mysore has suggested that by using the Compendium of Veterinarian Products, which essentially lists drugs used by veterinarians and describes what is in the “package insert” for the drug, it can be determined how much Atropine was administered to Ricochet and that amount can then be subtracted from the total drugs given to determine the amount of Acepromozine. Although there are different strengths of Atropine, the dosage for any strength suggested for use on dogs is the same: 1 mL for each 20 lbs. of body weight. Therefore, knowing Ricochets’ body weight (49 lbs.), it can be determined how much of the 3 cc injection of drugs was Atrophine. This amount can then be subtracted from the total to determine the amount of Acepromozine administered. The difficulty with Dr. Mysore’s argument is two-fold. First, it cannot be determine from the medical records that Dr. Mysore even relied upon the Compendium. Without this information, there is no way to know to apply the calculation suggested by Dr. Mysore. Although many veterinarians rely upon the information contained in the Compendium, not all do, and, therefore, there would be no reason to assume that Dr. Mysore did in this matter. Secondly, although veterinarians may rely generally upon information contained in the Compendium, there is no requirement that a veterinarian strictly adhere to the suggested dosages information contained therein. Therefore, even it were assumed in this matter that Dr. Mysore referred to the suggested dosage for Atropine contained in the Compendium, it cannot be assumed that he followed the suggestion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding that Thandaveshwar Mysore, D.V.M., committed the violations described in this Recommended Order, placing his license to practice veterinary medicine on probation for a period of one year, and requiring that he pay a fine of $2,500.00, and the costs of the investigation of this matter, within 30 days of the entry of the final order. DONE AND ENTERED this 12th day of January, 2009, in Tallahassee, Leon County, Florida. LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2009. COPIES FURNISHED: Martin P. McDonnell, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. Post Office Box 551 Tallahassee, Florida 32302 Charles Tunnicliff, Esquire Department of Business & Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Elizabeth F. Duffy, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2202 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1988. COPIES FURNISHED: Bill O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Braxton, Esquire 9100 South Dadeland Boulevard #406 Miami, Florida 33156 Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
