Findings Of Fact Respondent, Marianne T. Keim, is a licensed veterinarian in the State of Florida, holding license number VM 0005113 (Veterinarian). Respondent's license to practice veterinary medicine is currently under probation and emergency suspension. At all material times, Respondent practiced veterinary medicine in Tampa, Florida. Findings As To Count I Of The Administrative Complaint On August 18, 1994, the Board of Veterinary Medicine entered a Final Order in settlement of five (5) different cases involving allegations against the Respondent. The Final Order adopted a Stipulation of the parties, and was filed with DBPR on August 22, 1995. The Final Order resulted in the placing of Respondent's license to practice veterinary medicine on probation for a period of five (5) years. The Final Order imposed certain conditions on the Respondent's practice of veterinary medicine, and also imposed an administrative fine on Respondent in the amount of $3,000, payable within 180 days from the date the final order was rendered by the Board. The Final Order provides in pertinent part: The Respondent shall, in the future, comply with Chapters 455 and 474, Florida Statutes, and the rules promulgated pursuant thereto. The Respondent shall be placed on probation for five (5) years. The terms of the Respondent's probation are: Compliance with all requirements of this Final Order. Practice veterinary medicine with direct supervision by a Florida licensed veterinarian for not less than forty (40) hours per month. All other practice of veterinary medicine shall be with indirect supervision by a Florida licensed veterinarian. Personally appear before the Board of Veterinary Medicine at the first meeting after probation commences, semiannually, at the last meeting before probation terminates and at such other times as may be requested by the Board. The Respondent shall be notified by the Board staff of the date, time, and place of the Board meeting whereat Respondent's appearance is required. Failure of Respondent to appear as requested or directed shall be considered a violation of the terms of this Order, and shall subject the Respondent to disciplinary action. The direct and indirect supervisor shall be approved by the Board and shall review all aspects of the Respondent's practice of veterinary medicine. In the event the Respondent desires to change monitors, the Respondent shall notify the Board at least ten (10) days prior to the last date that the former monitor will be available. The Respondent shall allow the monitors access to Respondent's patient records, calendar, patient logs, or other documents necessary for the monitor to supervise the Respondent as detailed below. The responsibilities of the indirect monitoring veterinarian shall include the following: Review 25 percent of Respondent's active patient records at least once a month at the Respondent's office for the purposes of ascertain- ing the appropriateness of the Respondent's treat- ment, medication management, and the thoroughness with which her records are kept. The monitor shall go to Respondent's office once every month and shall review Respondent's calendar or patient log and shall select the records to be reviewed. Submit reports to the Board on a quarterly basis, in affidavit form, at least twenty-eight (28) days prior to each applicable Board meeting and each of which shall include: A description of Respondent's practice (type and composition). A statement addressing Respondent's com- pliance with the terms of probation. A brief description of the monitor's relationship with the Respondent. A statement advising the Board of any problems which have arisen. A summary of the dates the monitor went to the Respondent's office, the number of records reviewed, and the overall quality of the records reviewed. Any other reporting requirements. Maintain contact with the Respondent on a frequency of at least once per month. In the event that the monitor is not timely contacted by the Respondent, then the monitor shall report this fact in writing to the Board. The Respondent's monitor shall appear before the Board at the first meeting following commencement of the probation and at such other times as directed by the Board. It shall be Respondent's responsibility to ensure the appearance of her monitor to appear as requested or directed. Failure of the monitor, with- out good cause shown, to appear as requested or directed shall constitute a violation of the terms of this Order and shall subject the Respondent to disciplinary action. The responsibilities of the direct monitoring veterinarian shall include the following: Submit reports to the Board on a quarterly basis, in affidavit form, at least twenty-eight days prior to each applicable Board meeting and each of which shall include: A description of Respondent's practice (type and composition). A statement addressing Respondent's compliance with the terms of probation. A brief description of the monitor's relationship with the Respondent. A statement advising the Board of any problems which have arisen. A summary of the dates the monitor went to the Respondent's office, the number of records reviewed, and the overall quality of the records reviewed. Any other reporting requirements. The Respondent's monitor shall appear before the Board at the first meeting following commencement of the probation and at such other times as directed by the Board. It shall be Respondent's responsibility to ensure the appearance of her monitor to appear as requested or directed. Failure of the monitor, with- out good cause shown, to appear as requested or directed shall constitute a violation of the terms of this Order and shall subject the Respondent to disciplinary action. The Respondent shall obtain a second opinion, by a licensed veterinarian approved by the Board with respect to surgeries, excluding normal or routine spays, neuters, croppings and treatment of abscesses. The Respondent shall pay an Administrative Fine of three thousand dollars ($3,000). As Respondent has filed for protection in the United States Bankruptcy Court and has filed a plan of reorganization with said Court, the Respondent shall be allowed one hundred eighty (180) days from the rendition of the Final Order by the Board of Veterinary Medicine, to pay the fine. The fine shall be paid by the Respondent to the Executive Director of the Board of Veterinary Medicine, 1940 North Monroe Street, Tallahassee, Florida, 32399-0750. This time period may be extended by the Board for good cause shown. Any request for extension shall be submitted, in writing, to the Executive Director prior to the expiration of the 180 day time limit, at the address above. Pursuant to the Final Order, on October 19, 1994, Respondent made a required probationary appearance at the Board meeting in Orlando, Florida. When the meeting commenced, Respondent did not appear with her direct or indirect monitor, and the Board found Respondent in violation of the Final Order in that Respondent had not met the terms and conditions of her probation by failing to have her direct and indirect monitor appear for approval at the Board meeting. Respondent had sufficient time to locate a direct or indirect monitor, or to request an extension of time from the Board. At the October 19, 1994 Board meeting, Respondent represented to the Board that she had experienced difficulty in locating qualified, licensed veterinarians willing to accept the responsibilities of serving as her direct and indirect monitors as required by the Final Order. Prior to the conclusion of the Board meeting of October 19, 1994, Dr. Carlos Piniero, a veterinarian licensed in the State of Florida, and practicing in Hillsborough County, appeared and stated his willingness to serve as Respondent's indirect monitor. Respondent further indicated to the Board that she had obtained the consent of Dr. Robert Adey, a veterinarian licensed in the State of Florida, practicing in Winter Haven, Florida, to serve as her direct monitor. Pursuant to the Board's determination that Respondent had violated the terms and conditions of her probation, Respondent was instructed to discontinue her practice of veterinary medicine pending the Board's approval of her direct and indirect monitor as required by the Final Order. The Chairman of the Board, Dr. Bernard Myers, was given the authority to grant temporary approval for Respondent's direct and indirect monitors until the next meeting of the Board. On October 25, 1994, Dr. Robert Adey was temporarily approved by the Board chairman as Respondent's direct monitor, and Dr. Carlos Piniero was temporarily approved by the Board chairman as Respondent's indirect monitor. By letters dated December 22, 24, and 25, 1994, Respondent wrote individually to the seven members of the Board, Dr. Robert E. O'Neil, Dr. Carlos R. Pereira, Dr. Bernard Myers, Dr. Teresa L. Lightfoot, and Dr. Thomas F. Whitley, Ms. Cynthia Lewis, and Mr. Lewis Jennings, informing each individual member of her attempts to comply with the Final Order, as well as her difficulties in complying with the requirements of the direct monitor relationship. In these letters to the individual Board members, Respondent requested a reduction in her direct monitoring requirement from forty (40) hours per month to twenty (20) hours per month. At the next Board meeting on January 4, 1995, Respondent appeared with counsel, and with her direct and indirect monitors. After inquiring of the monitors and Respondent, the full Board confirmed the approval of Dr. Adey and Dr. Piniero to serve as Respondent's direct and indirect monitors, respectively. The Board did not consider, nor did the Board approve a reduction of the required forty (40) hours per month of direct monitoring of Respondent's practice of veterinary medicine by Dr. Adey. Respondent began her direct monitor relationship with Dr. Adey on October 20, 1994. As agreed to by her direct monitor, Respondent was required to attend Dr. Adey's clinic in Winter Haven, Florida, on each Thursday. From the onset, Respondent experienced difficulty in complying with the terms and conditions of the Final Order with respect to her relationship with her direct monitor, Dr. Adey. Because Dr. Adey practiced in Winter Haven, Respondent was required to travel approximately two hours each way from her office in Tampa, Florida, to Dr. Adey's clinic. Additionally, Dr. Adey restricted Respondent's activities in his clinic and, as a general rule, only allowed Respondent to observe his own practice. Dr. Adey expressed reservations regarding Respondent's abilities as a veterinarian, and accordingly, did not allow Respondent to practice veterinary medicine in his clinic except in very routine cases, and then only under his own observation and supervision, or the supervision of experienced members of his clinic staff. On one occasion, Dr. Adey gave Respondent an assignment on liver disease to complete at her own clinic. Respondent would also on occasion consult by telephone with Dr. Adey; however, Dr. Adey did not at any time monitor Respondent's practice of veterinary medicine at Respondent's Tampa clinic. According to Dr. Adey's records, Respondent was in attendance at Dr. Adey's clinic for approximately 15 hours in October of 1994, for approximately 28 hours in November of 1994, for approximately 32 hours in December of 1994, and for approximately 32 hours in January of 1995. Respondent's travel time, assignment time, or telephone consultation time are not included in the computation of these hours. From October 20, 1994 through the end of January 1995, Respondent missed three of her scheduled days for attendance at Dr. Adey's clinic. Two of the days were cancelled by Dr. Adey, and one day was cancelled by Respondent due to a meeting with her attorney. On January 27, 1995, Dr. Adey wrote a letter to Diane Gossett, an investigator with DBPR, stating that his direct monitor relationship with Respondent was unsatisfactory, and that under the circumstances, he was not able to attain the quality of direct monitoring of Respondent's practice of veterinary medicine that the Final Order of the Board required. On February 8, 1995, Dr. Adey wrote another letter to Diane Gossett expressing his continuing frustration with the direct monitor relationship with the Respondent, and tendering his resignation as direct monitor within ten (10) days. Dr. Adey subsequently agreed to remain as Respondent's direct monitor until March 12, 1995. On March 3, 1995, Respondent wrote to Susie Love, Program Administrator with the Board, expressing dissatisfaction with the inflexibility of the monitor situation, and requesting modifications of the Board's requirements in this regard. Respondent was informed by Susie Love by letter dated March 6, 1995, that approval of a direct monitor to replace Dr. Adey would have to be approved at the next Board meeting by the full Board. No action was taken by the Board with respect to the approval of a new direct monitor prior to the initiation of the emergency suspension proceedings against Respondent's license. The nature of the direct monitoring relationship established by Respondent with Dr. Adey did not satisfy the requirements imposed by the Final Order, in that Respondent did not practice veterinary medicine under the direct monitoring of Dr. Adey, but only was in attendance, and observed Dr. Adey's practice in Winter Haven one day a week. Respondent's indirect monitor, Dr. Carlos Piniero reviewed at least 25 percent of Respondent's records on a regular basis, consulted with Respondent as to her organization and record-keeping, and in this respect, Respondent was in compliance with the Final Order of the Board. Respondent has not paid the $3,000 fine assessed by the Board which was due 180 days from entry of the Final Order. Payment of the fine is overdue. By letter addressed to Susan Foster, Executive Director of the Board, dated December 5, 1994, Respondent requested an extension of time to pay the $3,000 fine. The letter was notarized by Thurston R. Smith also on December 5, 1994. Thurston Smith is a part-time employee of Respondent. The heading of the letter contains the correct business address of Susan Foster at 1940 North Monroe Street, Tallahassee, Florida, 32399. Respondent did not personally mail or fax the letter to Susan Foster, or request a return receipt. Dr. Lawrie Glickman, a friend of Respondent's testified that he believed the letter was among several items of mail he posted for Respondent. Thurston Smith testified that he believed the letter was among several items he faxed to DBPR for Respondent. Susan Foster did not receive the December 5, 1994, letter from Respondent by mail or by fax. DBPR has established normal and acceptable business procedures for processing incoming correspondence. In accordance with DBPR's normal business procedures, mailed or faxed letters addressed to the Board's Executive Director, Susan Foster, would routinely be opened and delivered to her office. Ms. Foster was personally familiar with Respondent, and also with the Board's actions relating to Respondent. Ms. Foster had received correspondence from Respondent on several other occasions, and had also received telephone calls from Respondent on several occasions. Any communication received by Ms. Foster from Respondent requesting an extension of time to pay a fine would, in the normal course of DBPR's procedures, have been brought to the Board's attention by Ms. Foster. A second handwritten letter from Respondent dated December 19, 1994, addressed to Susan Foster at the DBPR office in Tallahassee, also requested an extension of time to pay the $3,000 fine. The handwritten letter states that this is Respondent's second request for extension of time. Dr. Glickman testified he mailed and faxed this letter. Susan Foster did not receive the second letter. Respondent did not personally inquire of Susan Foster as to the status of Respondent's request for extension of time, nor did Respondent request that Ms. Foster place this matter on the agenda of the Board's next meeting on January 4, 1995. Respondent appeared, with counsel, at the next Board meeting on January 4, 1995; however, neither Respondent nor her counsel raised the issue of an extension of time in which to pay the fine with the Board. The Board did not consider, or approve an extension of time for Respondent to pay the $3,000 fine imposed by the Final Order. Respondent has not complied with the terms and conditions of the Final Order entered by the Board. Respondent did not satisfy the forty (40) fours per month of required direct monitoring of her practice of veterinary medicine. Respondent did not pay the $3,000 fine imposed by the Board within 180 days as required by the Final Order. Respondent's efforts in this regard do not constitute substantial compliance with a lawful order of the Board. Findings As To Counts II And III Of The Administrative Complaint On or about October 25, 1994, Mrs. Amy Armstrong inquired of Respondent as to performing a declaw procedure (also known as an onychectomy) on Mrs. Armstrong's six-month old English Springer Spaniel, Tilly. Mrs. Armstrong was concerned because her dog was digging in the yard, and scratching inside the house. Mrs. Armstrong was also concerned that her dog's digging and scratching would upset her landlord, and that she would be financially responsible for the damages caused by the dog. Mrs. Armstrong had initially contacted Respondent because Respondent's clinic advertised low-cost rates, and Mrs. Armstrong had been satisfied with Respondent's spay and neuter procedures previously performed on Mrs. Armstrong's cat and another dog. Mrs. Armstrong again called Respondent's clinic in mid-November 1994, and spoke with Daryl Dunnisch a member of Respondent's clinic staff regarding the declawing procedure. In late December of 1994, Mrs. Armstrong called again and Respondent personally discussed the declawing procedure with her. Respondent informed Mrs. Armstrong that the procedure required the dog to be anesthetized, but that the procedure should not be complicated for a young dog, that the recovery period would be a few days during which the dog would be sedated, and that the procedure should solve the digging and scratching problems Mrs. Armstrong was experiencing. Respondent also offered Mrs. Armstrong the alternative of filing down the dog's nails. Respondent's records reflect that Mrs. Armstrong was forewarned of the severe pain the dog would experience, as well as the lengthy recovery period. Respondent quoted Mrs. Armstrong a price of $65.00 for the declawing procedure. Mrs. Armstrong did not represent to Respondent or to a member of Respondent's office staff that she would euthanize the dog unless the declawing procedure were performed, but stated that she would need to consider other options about keeping the dog. As to this issue, the testimony of Mrs. Armstrong is deemed more credible. In regard to the declawing of her dog, Mrs. Armstrong also contacted another veterinarian, Dr. Robert Titus, at the Kingsway Animal Clinic, Brandon, Florida, to whom Mrs. Armstrong had, on occasion, previously taken her pets. Mrs. Armstrong inquired of the cost of the declawing procedure. Dr. Titus does not perform declawing procedures on healthy dogs, and told his staff to quote Mrs. Armstrong a price in excess of $285 to discourage her from seeking the procedure. After considering the price quoted by Respondent, Mrs. Armstrong made an appointment with Respondent to perform the declawing procedure on January 12, 1995. A declawing procedure on a healthy dog is not a normal or routine surgical procedure. This surgical procedure, which is more complicated in an animal with nonretractible claws, involves the removal of the third phalange, which is either a total or subtotal removal of the nail and the complete nail bed along the bone. The procedure results in severe pain in the dog which usually lasts for two or three weeks during which the dog should be medicated and closely examined for possible infection. Declawing of a healthy dog is rarely performed, although one text, General Small Animal Surgery, edited by Ira M. Gourley, D.V.M. and Philip B. Vaseur, D.V.M., which is an accepted treatise used in the practice of veterinary medicine, states that an onychectomy on a healthy dog is indicated to prevent digging or property damage. Performing an onychectomy is not completely prohibited under all circumstances in the practice of veterinary medicine. Under the terms and conditions of the Final Order, Respondent was restricted from performing any surgery other than "normal and routine spays, neuters, croppings and treatment of abscesses" without obtaining a second opinion by a licensed veterinarian approved by the Board. The Final Order did not, however, require Respondent to abide by the second opinion. Respondent consulted by telephone with her direct monitor, Dr. Adey, regarding performing the declawing procedure. Dr. Adey strongly advised Respondent against performing the procedure. After "shouting out" his objection to the procedure, Dr. Adey, nonetheless, reviewed with Respondent the appropriate incisions to be made in performing the surgery. Dr. Adey did not forbid Respondent from performing the surgery because he did not believe that as Respondent's direct monitor he had the authority to do so. Respondent also discussed the declawing procedure with her indirect monitor, Dr. Piniero. Dr. Piniero advised Respondent that he did not believe in performing a declawing procedure on a healthy dog, and that in his opinion, such surgery was indicated only when there was a medical basis for the procedure, such as a cancer or a tumor present in the paw. Despite the advice of her direct and indirect monitors, Respondent on January 12, 1995, performed an onychectomy on Mrs. Armstrong's dog. Dr. Piniero was present at Respondent's clinic when Respondent began the operation; however, Dr. Piniero did not supervise, or otherwise participate in the surgery, and left before the surgery was completed. Respondent had not previously performed an onychectomy. The surgery on the Armstrong dog lasted more than two hours. Following the surgery, the Armstrong dog remained at Respondent's clinic. The next day, January 13, 1995, Amy Armstrong called Respondent and was informed that her dog was doing well, but would be in severe pain for a while and that the recovery period would be approximately two weeks. On January 14, 1995, Mrs. Armstrong's husband visited the dog at Respondent's clinic. The dog's paws were heavily bandaged, but the dog was able to ambulate at that time. On Sunday, January 15, 1995, the Mr. Armstrong brought the dog home. At the time the dog was released, Respondent prescribed an antibiotic, Keflex, for the dog. Mrs. Armstrong spoke to Respondent by telephone, and was told to bring the dog back the following Wednesday or Thursday, to change the bandages. Respondent also informed Mrs. Armstrong that there would be additional charges for the care of the dog in excess of the original price of $65.00 for the surgical procedure. Mrs. Armstrong did not agree to the additional charges. When the dog returned home, Mrs. Armstrong became very upset. The dog was in severe pain, and could not ambulate. That evening Respondent called Mrs. Armstrong to check on the dog. Mrs. Armstrong expressed her concern for the dog's painful condition, and Respondent suggested the dog be given aspirin or Ascriptin. On Monday morning, January 16, 1995, Mrs. Armstrong observed a thick substance which she believed to be blood oozing through the dog's heavy bandages. Mrs. Armstrong became extremely concerned. She took the dog back to Dr. Robert Titus, at the Kingsway Animal Clinic, in Brandon, Florida. Dr. Titus observed what was determined to be serum seepage coming through the bandages on the dog's front paws, and noticed a "foul odor" similar to rotten meat coming from the paws. At that time, the dog's temperature was elevated to 104 degrees from a normal range of 100-102 degrees. Dr. Titus attempted to remove the bandages; however, because of the dog's severe pain, Dr. Titus was required to anesthetize the Armstrong dog in order to remove the bandages. Dr. Titus observed that the dog's front paws were swollen more than twice the normal size, and found serum leakage and serum blisters over the paws. Serum is a bodily fluid typically found at sites of inflammation. Dr. Titus also noticed a dehissing, or coming apart, of some sutures. Dr. Titus cleansed the surgical areas with antiseptics and antibiotics, and then rebandaged the paws. Dr. Titus sprayed an alum solution on the bandages to deter the dog from chewing on them. Dr. Titus also prescribed a systemic antibiotic (tetracycline) to fight any infection which might have been present, and also Tylenol 3 for pain. Dr. Titus sent the dog home with instructions to keep the dog as comfortable as possible, and to bring the dog back in two days to again cleanse the paws and rebandage them. On January 18, 1995, Mrs. Armstrong brought the dog back to Dr. Titus. The dog still was in severe pain, and the dog's temperature remained elevated at 104 degrees. Dr. Titus again was required to anesthetize the dog to remove the bandages. Dr. Titus observed more serum seepage, and cleansed the surgical areas, rebandaged the paws, and sent the dog home with the same instructions regarding care and medication. On January 20, 1995, Mrs. Armstrong called Dr. Titus to inform him that the dog was still having difficulty walking. Dr. Titus advised Mrs. Armstrong to continue the same care and medication procedures for a few more days, and then to bring the dog back. On January 23, 1995, Dr. Titus again examined the dog. The dog's temperature was 101 degrees. Dr. Titus cleansed and again rebandaged the dog's paws. At that time the swelling was greatly diminished, and no serum leakage was observed. The paws appeared to be healing, and Dr. Titus discontinued the antibiotics and pain medication. Mrs. Armstrong was informed when to take the bandages off, and to return to Dr. Titus only if the dog showed severe pain. Dr. Titus expressed no opinion as to whether the surgery on the Armstrong dog was performed in accordance with the standard of care acceptable in the practice of veterinary medicine. On January 27, 1995, Mrs. Armstrong called Dr. Titus to inform him that the dog was doing well, and was able to run. The Armstrong dog has now recovered from the surgery; however, the declawing procedure on the dog's front paws has not stopped the digging problem. Mr. and Mrs. Armstrong have kept the dog. Dr. Gary W. Ellison, Associate Professor at the College of Veterinary Medicine of the University of Florida, was qualified as an expert witness for Petitioner. Dr. Ellison testified that an onychectomy is not a common veterinary procedure. Unlike the declawing of an animal with retractable claws, such as a cat, declawing of an animal with nonretractible is a more complicated and difficult procedure and, in Dr. Ellison's opinion, should not be performed unless there is a medical necessity. Dr. Ellison, after reviewing the records, and hearing the testimony in this case, concluded that Respondent did not comply with the minimum standard of care and treatment in performing an onychectomy on the Armstrong dog. Specifically, Dr. Ellison testified that Respondent failed to properly consult with the owner, failed to recommend alternatives to the procedure, and should not have performed the onychectomy except for medically necessary reasons. Dr. Ellison further opined that Respondent was not prepared to do the surgery, which he considered improperly done, resulting in abnormal swelling, bleeding and infection of the paws. Dr. Ellison, however, acknowledged that General Small Animal Surgery, edited by Ira M. Gourley and Philip Vaseur, is an accepted treatise used in the practice of veterinary medicine, and that this treatise states that onychectomy is indicated to prevent digging and property damage. Dr. Ellison also acknowledged that the medication prescribed by Respondent for the Armstrong dog was acceptable under the circumstances, and that it is not unexpected for an onychectomy to produce swelling, bleeding and potential infection. Dr. Richard Goldston, a veterinarian qualified as an expert witness for Respondent, testified that in his opinion performing an onychectomy on a healthy dog was not an acceptable procedure unless there was no alternative and the dog would be euthanized. Dr. Goldston also recognized that accepted treatises state that an onychectomy is indicated to prevent digging. Dr. Goldston further testified that even a properly performed onychectomy produces inflammation and swelling, and that there would be a likelihood of infection. According to Dr. Goldston, normal post-operative recovery is two or three weeks, and a recovery period of less than two weeks would be considered successful. The recovery period of the Armstrong dog was acceptable. Another veterinarian, Dr. Edward Dunham, testified that in his twenty- five years of practice, he had performed an onychectomy on three occasions, and that while the procedure was not common, the procedure did not violate the ethical standards of the practice of veterinary medicine. Dr. Dunham further testified that he would not perform an onychectomy again.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: As to Count I, that Respondent's license be SUSPENDED for six months, that Respondent's probation be continued for five (5) years, with additional requirements for direct supervision. It is further recommended that Counts II and III be DISMISSED. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of June, 1995. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1995. APPENDIX As to Petitioner's Proposed Findings of Fact 1. - 30. Accepted and incorporated. Rejected as irrelevant. - 54. Accepted and incorporated. 55. - 61. Accepted and incorporated. Accepted, but Dr. Ellison further acknowledged that there is no prohibition on the procedure. Accepted, but Dr. Ellison further testified there is no prohibition on the procedure. Accepted, but Dr. Goldston and Dr. Dunham further testified that they had performed declawing operations, and that there is no prohibition on performing the procedure. As to Respondent's Proposed Findings of Fact 1. - 7. Accepted and incorporated. Accepted, except for second sentence which is rejected as irrelevant. - 11. Accepted and incorporated. Accepted as to the number of hours. Accepted and incorporated. Accepted to the extent that on one occasion Dr. Adey gave Respondent an assignment. Accepted as to dates cancelled, rejected as to reasonableness of effort. Rejected as not supported by the evidence. Accepted and incorporated. Accepted and incorporated. Accepted, except for second sentence. and 21. Accepted and incorporated. Rejected. - 28. Accepted and incorporated. Accepted, except date is October 25, 1994. Rejected, the initial inquiry was regarding the surgery and fee. Accepted and incorporated. Accepted to the extent that Mrs. Armstrong elected not to pursue nail filing. and 34. Rejected. 35. - 38. Accepted. Accepted except Dr. Ellison testified that the resultant swelling was abnormal. Rejected. - 44. Accepted. Accepted, except as noted in finding 39. and 47. Accepted. Accepted, to the extent that there are other publications on onychectomies. - 53. Accepted. Accepted, except that Dr. Dunham testified he does not now perform the procedure. Accepted, except that infection is a possibility, not an expectation. Accepted, except as to date. Rejected. See Finding 30. Accepted. Accepted. See Finding 32. and 61. Rejected. 62. - 65. Accepted. See Finding 39. Accepted. Accepted, except that Dr. Piniero left before the surgery concluded. Rejected. - 73. Accepted. See Finding 45. and 76. Accepted. See Finding 48. - 82. Accepted. See Finding 54. See Finding 55. Accepted, to the extent that Dr. Piniero responded in a letter to DBPR that Respondent was qualified. Accepted. COPIES FURNISHED: Susan E. Lindgard, Esquire James E. Manning, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward M. Brennan, Esquire 100 South Ashley Drive, Suite 1600 Post Office Box 3429 Tampa, Florida 33601-3429 Dr. Marianne T. Keim 800 West Kennedy Boulevard Tampa, Florida 33606 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Susan Foster Board of Veterinary Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint, and if so, what action should be taken.
Findings Of Fact The Department of Business and Professional Regulation, Board of Veterinary Medicine (Petitioner) is the state agency charged with regulating the practice of veterinary medicine in the State of Florida, pursuant to Chapter 474, Florida Statutes. Oliver R. Jones (Respondent) is, and has been at all times material hereto, a licensed doctor of veterinary medicine in and by the State of Florida, having been issued license number VM 0001439. On or about December 29, 1993, Cleo, a female cat, was presented to Respondent by the cat owner's mother for spaying. The owner's mother signed the surgical authorization form, and the surgery was scheduled for later that morning. At that time no history was taken on Cleo because the owner's mother had no knowledge of Cleo's history. Respondent provided the owner's mother with forms which requested information regarding Cleo's history and which were to be given to Cleo's owner. Not receiving any communication from the owner, Respondent telephoned the owner. He discussed additional procedures which were recommended for Cleo and inquired about Cleo's history. The owner refused any additional procedures and provided Respondent with no history on Cleo. Cleo was a referral through the Pet Aid League (PAL). PAL is an organization which offers spaying and neutering of animals at a reduced cost. Respondent was one of many veterinarians agreeing to accept referrals from PAL at PAL's reduced cost. Even though Respondent had no history on Cleo, based upon his examination of Cleo and his years of experience and training, Respondent determined that Cleo's health was appropriate for surgery. Respondent performed the spaying with no noted complications. Respondent used the same spaying procedure that he had used on all of his other patients without incident. At or around 5:30 p.m. or 6:00 p.m. on the same day as surgery, Cleo's owner picked her up. Respondent provided Cleo's owner with a postsurgical information sheet and advised the owner to keep Cleo confined to the carrying cage in which Cleo was located and not allow Cleo to roam about. The cost of the surgical procedure under PAL's guidelines was $32 which the owner paid. After surgery and up to and upon discharge, no bleeding was noted by Respondent from the surgical area. Cleo's owner lived approximately five minutes from Respondent's office. Upon arriving home, the owner laid a towel in front of Cleo's cage and allowed Cleo to leave the cage and lay on a towel. Cleo acted weak and lethargic. After approximately 15 minutes, Cleo continued to act weak and lethargic. The owner observed blood on the towel and on and around the area of the sutures where the surgical incision was made. The owner attempted to contact Respondent by telephone but received no answer. The owner assumed Respondent's office was closed. 1/ At or around 7:00 p.m. on the same day of surgery, the owner took Cleo to Pet Emergency Center (Pet Emergency) on North University Drive in Tamarac, Florida. Cleo was treated by Dr. Anwar Basta. Pet Emergency contacted Respondent after obtaining information from the owner that Respondent had spayed Cleo. Respondent requested that the emergency doctor do whatever was needed to save Cleo's life. Expressing concern regarding the cost of the emergency medical services, Cleo's owner was informed by Pet Emergency that Respondent was a shareholder in Pet Emergency and, therefore, she would be charged only one- half the cost for the medical services rendered, with no emergency fee. Dr. Basta observed that Cleo's mucous membranes were pale and depressed, and that she was bleeding from the suture area and internally. Cleo's packed cell volume (PCV) was 9. He administered an intravenous (IV) catheter, lactated ringers with 3cc dexamethasone and anesthetized Cleo. Dr. Basta reopened the surgical area and observed that Cleo was bleeding from the body of the uterus or "uterine stump." There was an indication of ligation but the ligature was not present. The absence of a ligature is not unusual since it is absorbable. Dr. Basta stopped the bleeding and re-sutured the incision. Cleo was given 60cc of blood by transfusion. After the treatment by Dr. Basta, Cleo was doing better and remained at Pet Emergency Center overnight. Respondent contacted Pet Emergency twice, checking on Cleo's condition. At discharge, on December 30, 1993, Dr. Basta prescribed antibiotics and advised Cleo's owner to visit the family veterinarian for further care. Cleo's owner paid $180.00 for the medical services rendered by Pet Emergency Center and Dr. Basta. After discharge, on December 30, 1993, instead of taking Cleo to Respondent, the owner took Cleo to Pine Island Animal Hospital (Pine Island). Cleo was treated by Dr. David Smith. At admission, Pine Island requested previous history of Cleo on a form. The history section was left blank by Cleo's owner. Cleo had previously received medical services at Pine Island. In October 1993, when the owner first acquired Cleo, Pine Island treated Cleo twice for hook and tape worms. Dr. Smith's role in treating Cleo after the emergency treatment by Pet Emergency Center was one of providing supportive care, such as IV, fluids, food, antibiotics, and close observation. Cleo remained at Pine Island for two days (December 30 - 31, 1993). Cleo was doing fine. Cleo's owner paid $214.18 for the medical services rendered by Pine Island and Dr. Smith. Respondent was not aware that Cleo had been taken to Pine Island after discharge from Pet Emergency Center. Respondent attempted to reimburse Cleo's owner $100.00 of the monies expended by Cleo's owner on the medical services provided due to the complications from the spaying. Cleo's owner returned Respondent's check, refusing to accept any money unless it was the entire sum expended. On May 10, 1994, Respondent provided Petitioner's investigator with his complete medical records on Cleo. Also, Respondent executed a verification of completeness form, which was notarized on May 10, 1994. Respondent kept his PAL patients' medical records 2/ separate from and on different forms than his regular patient records. Respondent's medical records on Cleo were generated at the time of surgery and completed during the day as each service was being completed for Cleo. Respondent's medical records failed to provide the results of Cleo's physical examination, Cleo's health, and what occurred during surgery. Respondent's medical records on Cleo are inadequate. Further, Respondent's medical records did not contain a history on Cleo. However, it is not unusual for veterinarians not to have the history of a patient. Performing a postoperative examination is essential. Respondent failed to examine Cleo at time of discharge. If Respondent had examined Cleo at the time of discharge from his care, he should have observed the symptoms of blood loss by Cleo and not have discharged Cleo. A normal PCV for a cat is 38 - A PCV below 12 is an indication that the patient is in distress, that the patient has been bleeding internally for some time, that the blood has had a chance to dilute and that an emergency transfusion is needed. A PVC of 9 is a critical point and indicates a significant blood loss which has occurred over a period of hours. Symptoms of blood loss include paleness of the mucous membranes, the gums or the eyeballs, and weakness. Even though Respondent claims to have performed such an examination, the medical records provided to Petitioner's investigator failed to show a postoperative examination at discharge or the results thereof. 3/ Spaying is the common term for ovariohysterectomy which is the surgical removal of the ovaries and body of the uterus. The procedure prevents an animal from going into heat and reproducing. Variations exist in the procedure of spaying. However, the commonality in all variations is removing the ovaries and the uterus and ensuring that the stumps are securely ligated to prevent bleeding. Ligation is the process of tying the stump using an absorbable suture (the ligature). The suture is tightly tied in a knot so that vessels are constricted to prevent bleeding; usually two knots are used. Respondent uses the same procedure for ligation in all of his spaying, which was no different when he spayed Cleo. In his procedure for spaying, Respondent uses a triple clamp technique. For the ovary and uterine horn, he places two clamps below the ovary and one above the ovary at the proper ligament. The lower clamp crushes the tissue and leaves an indention in the tissue when it (the lower clamp) is removed. In ligation, the suture is placed around the tissue in the indention left by the lower clamp and the suture is tied using a surgeon knot, i.e., a triple tied simple knot, and then a square knot over the surgeon knot. The broad ligament which has the vessels in it is cutoff. The ovarian stump is checked for bleeding. This same procedure is used for the other ovary and uterine horn. For the cervix, one clamp is placed anterior to the cervix, a second clamp is placed above that clamp, and another clamp is placed above the previous clamp. The bottom clamp crushes the tissue and leaves an indentation in the tissue when it (the bottom clamp) is removed. The same tie procedure (ligation) previously described for the ovarian stump is used for the uterine stump. A check for bleeding at the uterine stump is also made. The standard and accepted procedure in veterinary medicine under similar conditions and circumstances for ligation is different from that used by Respondent. Instead of looping or placing the suture around the tissue in the indention left by the clamp and then tying the suture, the standard and accepted procedure is to loop or place the suture around the tissue in the indention left by the clamp and then use a stick tie, or transfixation suture which is passing the suture through the tissue and then tying the suture. The standard and accepted procedure would prevent the suture from slipping off the ovarian stump or the uterine stump. Slippage would cause the ovarian stump or uterine stump to bleed. Respondent has been licensed in the State of Florida since December 31, 1973. He has performed over 3,000 spayings. This is the first time that a complaint has been filed against Respondent during his over twenty years of practice.
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: Placing Oliver R. Jones on probation for a period of one (1) year under such terms and conditions as deemed appropriate by the Board; and Imposing an administrative fine of $3,000. DONE AND ENTERED this 1st day of November, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1995.
The Issue The issues in this cause are fashioned by an amended administrative complaint brought by the Petitioner against the Respondent. By the first count to this complaint, Respondent is charged with knowingly employing and otherwise encouraging his wife, Nadia Said Helmy, to practice veterinary medicine in Florida without the benefit of a license. The second count to the amended administrative complaint was dismissed at the commencement of the hearing. By count three, the Respondent is charged with inappropriate advertising in association with his veterinary practice.
Findings Of Fact The State of Florida, Department of Professional Regulation, Board of Veterinary Medicine (Petitioner) is empowered by Chapters 455 and 474, Florida Statutes, to regulate the practice of veterinary medicine in Florida. Samy H. Helmy, D.V.M (Respondent), is and has been a licensed veterinarian in Florida during the pendency of the allegations set forth in the amended administrative complaint. Respondent's wife, Nadia Said Helmy, is not now licensed to practice veterinary medicine in Florida, nor has she been during the time sequence contemplated by the amended administrative complaint. Respondent and his wife owned and operated Wildwood Animal Clinic in Wildwood, Florida, from a period before January 1985 until June 1985. Respondent and his wife were also the owners and operators of Citrus Fair Animal Hospital in Inverness, Florida, from January 1985 through September 19, 1986, the date upon which Respondent gave a deposition in this cause. During the time frame in which both animal clinics were open, Respondent was principally located at the Inverness facility, while his wife was working in the Wildwood facility. Nadia Helmy was working under the supervision of the Respondent in her activities at Wildwood. Sometime in May 1985, a Ms. Goheen took her cat to Dr. Leigh McBride, another veterinarian licensed to practice in Florida. Ms. Goheen claimed that her cat had been treated by a veterinarian at the Wildwood Animal Clinic. She described that veterinarian as being a female. Dr. McBride was unfamiliar with a female veterinarian at the Wildwood Animal Clinic, being of the understanding that Respondent, a man, was the practicing veterinarian in that facility. This circumstance in which it was possible that someone was practicing veterinary medicine without the benefit of a license led to an investigation of that possibility on the part of Petitioner. Eventually, A. L. Smith, an investigator for Petitioner, was assigned to undertake the investigation. Smith borrowed a cat from Dr. McBride. Stogie, the cat, had come into Dr. McBride's veterinary clinic with a broken shoulder which Dr. McBride had repaired. Following this episode, the cat walked with a slight limp. Around May 22 or 23, 1985, in furtherance of his investigation, Mr. Smith took Stogie to the Wildwood Animal Clinic. He had in mind ascertaining whether Nadia Helmy was practicing veterinary medicine without a license by seeing if she would practice on the cat. He deliberately picked an occasion in which Ms. Helmy was alone in the Wildwood Animal Clinic in his effort to determine her willingness to practice veterinary medicine. Once inside the Wildwood Animal Clinic, Mr. Smith confirmed that Nadia Helmy was the only person in attendance. Smith asked to see a veterinarian, remarking to Ms. Helmy that his cat was suffering lethargy and was limping more than usual and that he needed the cat to be examined by a veterinarian. Ms. Helmy directed Smith to take the cat to an examination room and showed him the location of that examination room. At that point, Smith said that Nadia Helmy commenced "the examination." He further described that while the cat was on the examining table ". . . she [Nadia Helmy] was looking at it and looking into its eyes." He indicated that the examination he was observing was what he would expect a veterinarian to give an animal. On the other hand, this is the first instance in which Mr. Smith had ever done undercover investigation of alleged unauthorized practice of veterinary medicine and there is no other information that has been presented which would lead to the conclusion that Mr. Smith knew what techniques would be employed in an examination conducted by a veterinarian. Under the circumstances, there being no further indication of the factual details of the examination, absent the remark concerning Nadia Helmy's looking into the eyes of the cat, it cannot be concluded what details were involved in the alleged examination process and whether in fact the kind of examination conducted by veterinarians was occurring. The telephone rang, and Nadia Helmy left the examination room and answered the phone. She was gone for. three or four minutes. Mr. Smith could hear Nadia Helmy's end of the conversation, in which she spoke in some foreign language. Nadia Helmy testified in the course of the hearing that she spoke with her husband on the telephone regarding the symptoms of Stogie, among other matters. Having examined her demeanor in the course of the hearing and all her answers provided under interrogation, no credence is afforded her version of the telephone conversation. Consequently, no facts are found as to the nature of that conversation. Nonetheless, it is concluded that a conversation was held between Nadia Helmy and Respondent. Following the telephone conversation, Nadia Helmy returned to the examination room and looked at the cat again. Mr. Smith admitted that the cat seemed to be better and Ms. Helmy agreed with him and stated that the cat was just suffering from extended travel. Nadia Helmy said that the cat would be better after returning home. This was in response to Mr. Smith's representation that he was travelling between Tallahassee and Naples, Florida. Mr. Smith described the remarks by Nadia Helmy, concerning the fact that the cat was suffering from extended travel to be some form of diagnosis. Again, it not being identified that the investigator could speak to matters of what constitutes a diagnosis and the nature of those remarks by Nadia Helmy not being clearly a form of diagnosis which might be recognized by a lay person, the remarks are not received as stating a diagnosis. Throughout the exchange between Mr. Smith and Nadia Helmy on the date that the cat was brought to the Wildwood Animal Clinic, Mr. Smith referred to Nadia Helmy as "doctor." Although Ms. Helmy did not correct Mr. Smith in his reference, she did not affirmatively state that she was in fact a veterinarian licensed by Florida to practice veterinary medicine. In the course of the events in the examination room, Nadia Helmy did not take the temperature of the cat, did not take a case history on the cat or provide any form of treatment. Following the conversation in the examination room, Investigator Smith asked Nadia Helmy "how much" for her service. She replied five dollars. Nadia Helmy gave Investigator Smith a receipt for the payment of the five dollars. A copy of the receipt may be found as Petitioner's Exhibit 1 admitted into evidence. It is on a form of the Wildwood Animal Clinic, which has a portion related to the character of service. This portion of the receipt is not filled out. The only thing that is reflected is the amount of charges and Mr. Smith's name and a date, May 22, 1985. Under these circumstances, it cannot be concluded that the five dollar charge was for provision of veterinary services. After leaving Wildwood Animal Clinic, Investigator Smith went to Citrus Fair Animal Hospital at Inverness. While there, he discussed with Respondent the facts of his visit to the Wildwood Animal Clinic and the nature of events related to Respondent's wife and the fact that the investigation was in answer to allegations made about the wife's practice of veterinary medicine. In the course of this conversation, Respondent stated that his wife was a graduate of veterinary medicine and was qualified to examine animals and run the clinic but that he did all of the surgery. He stated that his wife was qualified to give shots and to determine what was wrong with animals. Concerning the wife's actions, Respondent stated that his wife was too busy raising three children to get all the classes and under this circumstance hadn't passed an examination. Nonetheless, according to Respondent, the wife was completely qualified in that she was a graduate of veterinary medicine school. This acknowledgment by Respondent as to the general arrangement between the Respondent and his wife concerning the operation of the Wildwood Animal Clinic does not revitalize the Petitioner's claim that the wife was practicing veterinary medicine on the specific day in question. Evidence was presented in the course of the hearing concerning the fact that Nadia Helmy would not treat an animal of one Ralph Benfield when the animal had been offered for treatment at the Wildwood Animal Clinic. However, this situation occurred at a time when the Wildwood Animal Clinic was being phased out and it is not clear what significance that fact had in the decision by Nadia Helmy not to offer assistance to the animal. In January 1985, Respondent entered into a one-year advertising contract with the Citrus County Chronicle, a local newspaper. This was for the placement of advertisements pertaining to his Citrus Fair Animal Hospital. One of the ads placed in the paper, at the instigation of the Respondent, can be found as Petitioner's Exhibit 4 admitted into evidence. The date of the advertisement is March 31, 1985. It advertised free fecal check and a free office visit, but did not contain the 72-hour disclaimer language contemplated by Section 455.24, Florida Statutes. Having been advised of this problem related to the lack of disclaimer, Respondent, by correspondence of August 26, 1985, acknowledged his violation and modified the format of his advertising. The letter of August 26, 1985, and the new format of advertising may be found as Petitioner's second exhibit admitted into evidence. This letter had been dispatched based upon a complaint which was filed on August 9, 1985, by a Dr. Asaad. This led to action by the Petitioner attempting to have Respondent rectify the problems with his advertising. Following the circumstance in which Respondent had been made aware of the problem with his advertising, he took steps to ensure that the advertising was in compliance with law by contacting the Citrus County Chronicle. Although the employee of the Citrus County Chronicle who testified in the course of the final hearing was uncertain about whether the March 31, 1985, advertising copy was specifically approved by the Respondent, it was the practice of the newspaper to provide Respondent with a proof prior to publication. Circumstantially, it is concluded that Respondent did not oppose or question the acceptability of the March 31, 1985, advertising. Support for this position is found in the fact that Respondent conceded his violation by his August 25, 1985, correspondence.
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 In treating Ms. Cottrell's English bulldog on May 15, 1987: Whether Respondent knowingly concealed information relevant to violations of Chapter 474, Florida Statutes; Whether Respondent knowingly prepared a false report or record; Whether Respondent performed or prescribed unnecessary treatment; Whether Respondent was negligent or guilty of misconduct in this treatment; Whether Respondent falsified records pertaining to this treatment; and Whether Respondent was incompetent or unprofessional in his dealings with Ms. Cottrell.
Findings Of Fact At all times relevant hereto Phillip F. Habib, Respondent, was licensed as a doctor of veterinary medicine as alleged. On May 15, 1987, Ms. Sandra Cottrell came home from work at approximately 5:00 p.m. and observed her three-year-old English bulldog "Jake" to be lethargic, which was unusual. Being familiar with English bulldogs and aware that their state of health can change rapidly, Ms. Cottrell called her veterinarian, Dr. LaDue, who advised her to take the dog's temperature, keep a close watch on the dog and call back with temperature results and any changes in the dog. At this time Ms. Cottrell was living at her mother's home and did not have a thermometer with which to take Jake's temperature. She called Dr. LaDue back to report she was unable to take Jake's temperature but he seemed to be in no present distress. Shortly thereafter Ms. Cottrell decided to take Jake for a walk. By the time they reached the end of the driveway she realized that Jake was acting abnormally and she became concerned. She aborted the walk and decided to take Jake to her veterinarian. By this time Jake had begun to have difficulty breathing. Ms. Cottrell then decided that Jake's condition required emergency intervention and had her sister-in-law look in the telephone book for the nearest animal clinic. That clinic was Hope 'n Happiness Animal Clinic in Clearwater, Respondent's place of business. Ms. Cottrell, accompanied by her sister-in- law, drove Jake to this clinic. Both Hope Habib, wife of Respondent, and Respondent testified that Ms. Cottrell told them upon her arrival that she had been playing frisbee with Jake when he became ill. The only activity of Jake that Ms. Cottrell testified to was attempting to take Jake for a walk. Ms. Cottrell was not called as a rebuttal witness (although she was still present) to confirm or deny the frisbee testimony. Although Respondent testified he didn't know what a frisbee was until he later asked his six-year-old child, the Habibs' testimony is not deemed credible. If, in fact, Respondent was told that Jake had been chasing a frisbee when he became ill this presented a conclusive reason for suspecting Jake was suffering from hyperthermia. Upon arrival at the clinic Jake was carried into the reception area and Hope Habib showed them into an examination room. During this time Jake was wheezing and having difficulty breathing. Respondent promptly started examining Jake with Ms. Cottrell present. English bulldogs are very susceptible to heat prostration or hyperthermia. Up to 50 percent of English bulldogs who get hyperthermia die. This phenomenon is widely known among English bulldog owners and veterinarians. Temperatures above 103 degree F. for English bulldogs need to be reduced quickly. At no time while Jake was being examined and treated by Respondent did Ms. Cottrell see the Respondent take Jake's temperature. Nevertheless, Respondent entered temperature of 103.0 degrees on the medical record (Exhibit 5). He also recorded Jake's weight at 80.0 pounds. Jake's normal weight is 67- 68 pounds. At no time did Ms. Cottrell observe Respondent weigh Jake. When first interviewed by Petitioner's investigator Respondent admitted that he had estimated the dog's weight. Shortly after commencing his examination of Jake, Respondent advised Ms. Cottrell that Jake was having a heart attack and that she had killed her dog by letting him get too fat. Subsequently he diagnosed Jake as having a diaphragmatic hernia which required immediate surgery. X-ray equipment needed to diagnose such a hernia was not available at Hope 'n Happiness Clinic on May 15, 1987. Respondent referred Ms. Cottrell to an emergency animal clinic in Clearwater several blocks distant for surgery. Respondent also called this clinic to alert them of the referral. While treating Jake, Respondent administered some 750 mg soludeltacortef, which is a recommended treatment for animals suffering heat prostration (Exhibit 6). This drug serves to reduce the effects of shock to the animal and it is recommended to be given IV (Exhibit 6). Respondent testified, and his medical record indicate, that soludeltacortef was administered intravenously. Ms. Cottrell testified that Respondent was unable to locate a vein for an IV injection and that several "shots" were given Jake in the hip muscle. In his notes, apparently written later that evening (Exhibit 5), Respondent lists possible diagnoses of: shock, "lung damage or diaphragmatic hernia, heart problem and maybe other diagnosis." He does not include heat prostration as a possible diagnosis. To demonstrate the diaphragmatic hernia Respondent pressed on Jake's abdomen which caused the animal to regurgitate. X-rays subsequently taken in Tampa did not confirm a diaphragmatic hernia. The existence of a diaphragmatic hernia cannot be determined by palpitating the abdomen. During the treatment of Jake by Respondent attempts to administer oxygen were made by placing a face mask over Jake's nose. This was unsuccessful and further agitated the animal. This effort was discarded and Ms. Cottrell was referred to the emergency clinic. Respondent and his wife's testimony that the oxygen given Jake revived him to the extent that he could stand on the floor without assistance and could have walked out of the Respondent's clinic is not credible under the circumstances. During the 30-45 minutes Jake that was being treated by Respondent, Ms. Cottrell was very upset and crying due to her concern for her dog's health. However, she remained in the examining room the entire period but for a few seconds when she went to the lobby to get her sister-in-law to come to the examining room. Hope Habib testified that Ms. Cottrell was in and out of the examining room frequently to make telephone calls while Jake was being treated. Considering the circumstances and the potential bias of the witness the testimony of Ms. Cottrell is deemed more credible. When Ms. Cottrell asked Respondent how long Jake would live she was told anywhere from 30 minutes to 5 hours or more. Upon leaving Respondent's clinic Ms. Cottrell decided to take Jake to Tampa to the clinic of her regular veterinarian. This was a trip of 30-35 minutes as compared to the 5-10 minute ride to the emergency clinic to which she had been referred by Respondent. The weather on May 15, 1987 was normal for that time of year with a high of 83 degrees F. and a low of 71 degrees F. The temperature recorded by the Department of Commerce at the St. Petersburg-Clearwater airport at 5:50 p.m. and 6:51 p.m. was 74 degrees F. (Exhibit 10). Although Ms. Cottrell's car was not air-conditioned, she had the windows down during the drive from Clearwater to Tampa and Jake was in the front seat on the passenger's side during this trip. At the time Jake departed Respondent's clinic, Respondent believed that Jake was being taken to the emergency animal clinic in Clearwater. When he called this clinic to see if Jake had arrived and learned he had not, he then called Ms. Cottrell's home phone where he learned that Jake had been taken to the Tampa clinic. Respondent then called the Tampa clinic and advised the doctor there treating Jake that Respondent had given Jake soludeltacortef and to inquire about the dog. The medical records pertaining to the treatment given Jake by Respondent (Exhibit 5) were prepared after Jake arrived at the Tampa clinic. Respondent's testimony that these notes were prepared that evening is otherwise unrebutted. Upon arrival at the Tampa clinic Jake's temperature was 107 degrees F. and emergency treatment for hyperthermia was begun. The animal was immediately hosed down in an attempt to reduce his temperature. Temperature readings were taken frequently during this period until Jake's temperature was reduced to 103 degrees F. and at a wider spaced interval after that temperature was reached. No evidence was presented regarding the possibility or likelihood of Jake's temperature rising from 103 degrees F. while at Respondent's clinic to 107 degrees F. some 30-45 minutes later when he arrived at the Tampa clinic. The conditions under which this 35-40 minute ride was made was in a non air conditioned but open car with the outside temperature of 74 degrees F. The dog was closely monitored at the Tampa Bay Animal Center after being taken there Friday evening, May 15, 1987. Ms. Cottrell visited the center to see Jake on Saturday, May 16, 1987 when the dog appeared to be semicomatose; and Jake died Saturday evening. Respondent's method of writing medical records in the third person led some witnesses to conclude that these records had been prepared after charges of malpractice were made. Respondent's testimony that he always prepared medical records after the close of the clinic was unrebutted as was the testimony of other witnesses who had reviewed many of Respondent's records that Respondent writes all of his medical records in the third person. After learning of the complaint filed in this case, Respondent telephoned Ellen Trapp, D.V.M., the veterinarian who treated Jake at Dr. LeDue's Tampa clinic, and Dr. LeDue; and indicated that they, as veterinarians needed to stick together. When Dr. LeDue responded that Respondent had failed to properly diagnose Jake's condition by failing to take his temperature, Respondent hung up on him. Respondent also stated to Dr. Trapp that he would not be held responsible for his actions if something happened at the end of this court hearing. To Petitioner's investigator Respondent subsequently denied ever contacting any veterinarian regarding this case.
Recommendation It is recommended that the license of Phillip F. Habib as a doctor of veterinary medicine be revoked. It is further recommended, that the revocation be stayed for a period of 3 years probation under such terms and conditions as the Board of Veterinary Medicine deems appropriate, and that, at the expiration of the three years probationary period, unless sooner vacated, the revocation be set aside and Respondent restored to good standing. ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4691 Treatment accorded Petitioner's proposed findings: Included in H.O. #1. Included in H.O. #2, 3, 4. Included in H.O. #4, 5. Included in H.O. #7. Included in H.O. #10. Included in H.O. #9. Included in H.O. #9. Included in H.O. #13. Included in H.O. #11, 12. Included in H.O. #9, 14. Accepted. Accepted in H.O. #10, 15. Accepted. Accepted in H.O. #17. Included in H.O. #15, 16, 18. Included in H.O. #9. Accepted. However, this statement was made long after Jake's death was determined to have resulted from hyperthermia. 18-19. Included in H.O. #11. Accepted. Included in H.O. #22. 22-23. Accepted as conclusions of law. Included in H.O. #8. Accepted Accepted insofar as included in H.O. #12. Accepted only insofar as included in H.O. #13. Included in H.O. #13. Rejected as irrelevant. 30-32. Rejected as irrelevant. Accepted. However, Respondent testified that only a date was added to the record. Rejected as unsupported by credible evidence. Accepted. Treatment accorded Respondent's proposed findings. Included in H.O. #2, 3, 4. Included in H.O. #5. Included in H.O. #8, 14. Accepted as testimony of witness. Accepted insofar as included in H.O. #5, 15. Included in H.O. #14. Included in H.O. #3, 9. 8-9. Rejected as irrelevant. Included in H.O. #16. Accepted. Included in H.O. #3, 9. Irrelevant. Irrelevant. Dr. LaDue was not involved in treatment of Jake. Accepted Included in H.O. #15. Accepted. Rejected as irrelevant when decision made. Included in H.O. #3 and 6. Included in H.O. #10. Accepted insofar as no one could explain the missing X-ray. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Accepted. Rejected as unsupported by Douglas' testimony. First sentence accepted. Last sentence rejected. Rejected as irrelevant. Rejected as irrelevant. Rejected as repetitious (see 12). Accepted but irrelevant. Accepted but irrelevant. Rejected. Record shows dog's weight as 80.0 pounds. Irrelevant. Irrelevant. Irrelevant. Dr. Douglas never saw the dog. Irrelevant because of duplicity. Accepted. Accepted but irrelevant. Accepted but irrelevant. Rejected except to the extent that almost anything is possible. Irrelevant. Accepted. Accepted. Accepted as testimony of Mandelker. Irrelevant. Accepted in part. Manner in which Habib prepared records only part of basis for Green's opinion. Irrelevant. Rejected. Accepted but irrelevant here. Irrelevant. Irrelevant. Rejected. No evidence submitted that Jake was ever hypothermic on May 15, 1987. Term hypothermia misused or reporter error. Accepted. Irrelevant. Rejected as unsupported by Cottrell's testimony. Accepted-insofar as in H.O. #13. Rejected. Accepted insofar as included in H.O. #14. Rejected. See H.O. #13. Irrelevant. Irrelevant. Accepted. Accepted. See H.O. #21. Included in H.O. #21. Accepted. Rejected. Habib's testimony in this regard differs from that of his wife. However, the accuracy of the testimony is not material. Rejected. Rejected. Rejected. See H.O. #13. 71. See H.O. #15. Irrelevant. Included in H.O. #17. Included in H.O. #17. 75. See H.O. #21. Accepted. Accepted. Trapp didn't see the dog until he was presented that evening. Irrelevant. Accepted. Accepted. Accepted insofar as included in H.O. #12. Accepted but irrelevant. Irrelevant. Included in H.O. #17. Repetitious. Irrelevant. Irrelevant. Cottrell was not working at the LaDue clinic in May 1987 and was getting no discount at that time. Irrelevant. Accepted. Accepted as Goldston's opinion. Accepted as Goldston's opinion. Rejected. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Louis Kwall, Esquire 138 North Ft. Harrison Avenue Clearwater, Florida 34615 Kenneth Easley Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Linda Biedermann Executive Director Board of Veterinary Medicine Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
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
The Issue Whether Respondent failed to keep proof of vaccination on file for racing greyhounds in his kennel, had a hypodermic needle on premises where racing greyhounds were lodged or kept, or stored cleaning supplies in the same area as bedding intended for racing greyhounds, as alleged in the Administrative Complaint, and if so, what is the appropriate sanction.
Findings Of Fact The Department is the state agency charged with regulating pari-mutuel wagering in the state of Florida, pursuant to chapter 550, Florida Statutes. Mr. O'Donnell owns racing greyhounds. He keeps his dogs, along with some leased dogs of other owners, in kennels that he leases for that purpose. At all times material to this case, Mr. O'Donnell held a pari-mutuel wagering business occupational license, number 441699, issued by the Department. At all times material to this case, Mr. O'Donnell held a pari-mutuel wagering professional individual license, number 330177, issued by the Department. A "permitholder" is a person or entity which holds an annual license to conduct pari-mutuel operations at the location specified in the permit. The licenses held by Mr. O'Donnell do not allow him to operate a pari-mutuel track or to conduct pari- mutuel operations at specified locations. Mr. O'Donnell is not a permitholder. Mr. O'Donnell employed a licensed trainer, Mr. Dennis Smith, who was responsible for day-to-day activities involving the dogs. Mr. O'Donnell personally kept responsibility for setting up vaccinations for the dogs. Mr. O'Donnell was not always physically present when vaccinations were given. Dr. Emilio L. Vega was a licensed veterinarian that Mr. O'Donnell employed to vaccinate his racing dogs. Dr. Vega came to Mr. O'Donnell's kennels for many years to vaccinate the dogs. Dr. Vega died on September 4, 2010, at the age of 80 years. On September 14, 2011, Investigator Tyrell Smith of the Department was reviewing operations of licensees who own or train greyhounds at the Florida Kennels Compound in Hialeah, Florida. At kennel number 45, leased by Mr. O'Donnell, he asked a kennel helper to let him inspect the vaccination records for the dogs.3/ Fifty-two vaccination records that had been signed in 2011 were produced for dogs in that kennel, and the helper indicated that Mr. O'Donnell was keeping vaccination records for other dogs. Investigator Smith noted that the name in the veterinarian's signature block on the forms was Dr. Vega. He was not aware at that time that Dr. Vega was deceased and could not have signed the forms in 2011. On September 23, 2011, Investigator Smith asked a kennel helper at Steubenville Kennel, numbers 36 and 37, which are also leased by Mr. O'Donnell, for vaccination records for the dogs. The kennel helper provided four records that contained the name of Dr. Vega in the veterinarian's signature block, dated in 2011. After talking with other trainers at the track, Investigator Smith learned that Dr. Vega had died in 2010. On September 30, 2011, Investigator Smith and other employees of the Department visited two animal clinics where Dr. Vega had formerly worked. The clinics did not have vaccination records for dogs in any of Mr. O'Donnell's kennels. Investigator Smith was able to view copies of some other vaccination records, and the signature appeared to Investigator Smith to be the same signature that appeared on the forms that had been given to him for the dogs in Mr. O'Donnell's kennels. On October 4, 2011, Investigator Smith visited kennel number 39 in Hialeah and asked Mr. O'Donnell for the vaccination records for those dogs. Mr. O'Donnell told him that the records had been stolen. Investigator Smith asked Mr. O'Donnell if he had filed a police report. Mr. O'Donnell said he had not. He indicated that he would just re-do the vaccinations. Investigator Smith returned to kennel number 39 on October 14, 2011. The vaccination records were not available. Mr. O'Donnell gave Investigator Smith the telephone number of Dr. Ann Romano, a veterinarian, and was told that she would be able to give him the vaccination information. Investigator Smith called Dr. Romano, but had only a very brief conversation with her, because communication was poor and because she was leaving on vacation. On October 25, 2011, Investigator Smith returned to kennel number 39 and again requested to see vaccination records for the dogs. He was provided records signed on October 24, 2011, by Dr. Romano. He later talked to Dr. Romano, who confirmed that she had vaccinated the dogs on October 24, 2011, but had not ever vaccinated any of Mr. O'Donnell's dogs before that date. The rule provides no "grace period" for enforcement of the requirement to keep proof of vaccination on file. Mr. Charles Taylor is an investigation specialist for the Department. Investigator Taylor was asked by his supervisor to go to the Orange Park Kennel Club ("Orange Park") and examine dog vaccination records for dogs in Mr. O'Donnell's kennels to see if any had been signed by Dr. Vega. Investigator Taylor visited the Orange Park facility on December 21, 2011. In the racing secretary's office, he found 56 National Greyhound Association papers, with vaccination records attached, for dogs in Mr. O'Donnell's kennels. The National Greyhound Association is an association that registers racing greyhounds. Examining these 56 vaccination records, he found that 21 of them contained the name of Dr. Vega in the veterinarian's signature block, with dates ranging from January 15, 2011, to September 16, 2011. He also found one undated, blank record with Dr. Vega's name in the veterinarian's signature block. Investigator Taylor made copies of these vaccination records. He did not contact either Mr. O'Donnell or the trainer of record about these vaccination records. Dr. Vega was deceased and did not sign any vaccination forms in 2011. Any forms purporting to contain his signature with a 2011 date were invalid and did not constitute proof of vaccination. The Department had visited the workplaces of Dr. Vega, and no other proof of vaccination could be obtained through the treating veterinarian. On August 27, 2013, Mr. O'Donnell occupied or had the right to occupy kennel number 45, at the Florida Kennels Compound, 7218 West Fourth Avenue, Hialeah, Florida, 33014. Mr. Luis Miranda is the facility manager of the Florida Kennel Compound. He conducts regular walk-through inspections of the kennels. Mr. Miranda points out any violations he observes to Investigator Smith when he comes to inspect the kennels. On August 27, 2013, Mr. Miranda told Investigator Smith that Mr. Miranda had found that kennel 45 was dirty during his walk-through inspection.4/ Investigator Smith went to kennel 45. There was no one there. A kennel is never locked, because it must remain open for safety of the dogs; however, there is a security gate and guard on duty at the entrance to the facility, and only licensees can gain entrance. Inspector Smith testified that kennel 45 did not appear dirty. He looked in the medicine cabinet in the kitchen area of the kennel, which is only about five feet from the dogs. He saw a syringe with a hypodermic needle attached. He confiscated it, took a picture, and placed it in a storage container. He never asked Mr. O'Donnell about the needle. On October 10, 2013, Mr. O'Donnell occupied or had the right to occupy kennel numbers 36 and 37, at the Florida Kennels Compound. On October 10, 2013, Inspector Smith conducted an inspection of kennel numbers 36 and 37, the Steubenville Kennel. He found the vaccination records all in order. He found a bottle of Clorox bleach and spray bottles containing unknown substances sitting on top of a crate that had a dog sleeping inside. He asked kennel workers about the chemicals. They told him they had just put them up there for cleaning and would move them in a few minutes. He found a hypodermic needle with syringe in kennel 36. He photographed these items. Kennel helpers removed the bleach and spray chemicals. Mr. O'Donnell was not there when Investigator Smith arrived, but came later while Investigator Smith was still there. While the Department showed that a bottle of Clorox cleaning solution was on top of a crate that had a dog sleeping inside, it did not clearly show that the Clorox cleaning solution was being "stored" there. The word "store" is defined as "to take in or hold supplies, goods, or articles, as for future use" or "to deposit or receive in a storehouse or warehouse for safekeeping" or "to put something that is not being used in a place where it is available, where it can be kept safely, etc." See Random House Dictionary, Random House, Inc. (2014), online at http://dictionary.reference.com/browse/store; American Heritage Dictionary of the English Language, 5th ed. (2014), by Houghton Mifflin Harcourt, at www.ahdictionary.com/word/search.html?q=store; and Merriam-Webster Online Dictionary, http://www.merriam- webster.com/dictionary/store. If the helpers only placed the Clorox on the crate while they were using it, as claimed, the Clorox and other cleaning materials were not "stored" there. There was no clear evidence to refute the helpers' admissions. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for 52 of his racing greyhounds on September 14, 2011. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for his racing greyhounds on October 4, 2011. The Department showed by clear and convincing evidence that Mr. O'Donnell failed to keep proof of vaccination for 21 of his racing greyhounds on December 21, 2011. The Department showed by clear and convincing evidence that on August 27, 2013, and October 10, 2013, Mr. O'Donnell had hypodermic needles with syringes on premises which he had a right to occupy on the grounds of a racing permitholder where racing greyhounds were kept. Mr. O'Donnell has been involved with racing greyhounds for over 60 years. Prior to the incidents involved in this case, Mr. O'Donnell had never received a notice of violation from the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Business and Professional Regulation, Division of Pari-mutuel Wagering, enter a final order: (1) finding Mr. James E. O'Donnell guilty of 74 counts of violating Florida Administrative Code Rule 61D-6.009(9) and two counts of violating Florida Administrative Code Rule 61D- 6.004(2)(a); and (2) imposing an administrative fine of $76,000. DONE AND ENTERED this 24th day of December, 2014, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 24th day of December, 2014.
The Issue The issue for determination is whether Respondent, a licensed veterinarian, committed a violation of Section 474.214(1), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary sanctions should be imposed against his license.
Findings Of Fact Respondent is William R. Dudley, a licensed veterinarian at all times pertinent to these proceedings, holding license number VM 0000626. Respondent's last known address is 613 Westwood Drive, Milton, Florida 32570. Petitioner is the state agency charged with regulating the practice of veterinary medicine pursuant to Section 20.165, Florida Statutes; Section 455, Florida Statutes; and Section 474, Florida Statutes. On or about January 5, 1998, Respondent performed declaw surgery on Aladdin, a Chocolate Point Siamese cat owned by Kim Hawkins. The surgery was performed on a fold-down table attached to the back of Respondent’s pickup truck. The truck was outfitted as an agricultural veterinary vehicle. Respondent administered a mixture of Ketaset and Acepromazine to the cat prior to surgery. No other medication was administered to the animal for purpose of either analgesia or anesthesia. The Ketaset and Acepromazine administered to the cat are both controlled substances. These drugs are not anesthetics and served only to immobilize the cat during the operation. After the surgery, Kim Hawkins took the cat home. The animal’s paws continued to bleed. On January 7, 1998, the cat was examined by another veterinarian, Dr. Yehia Ibrahim, who wanted to know “who had butchered the cat.” In a declaw procedure, the animal is first anesthetized and the cat’s claw and the third phalanx of each toe are removed. Each toe has three phalanxes and a claw. While the procedure performed by Respondent involved only the animal’s front paws, Respondent did not remove all of the third phalanx on several of the animal’s toes, and removed the third and part or all of the second phalanx on the animal’s other toes. Respondent removed part of the digital pad on most, if not all, of the toes on both of the cat’s front claws. As established by the evidence at final hearing, Respondent performed the declaw surgery in a negligent manner. Respondent did not make or retain any medical record of the declaw procedure performed on the Hawkins’ cat. Respondent did not have a premise permit for his house or a mobile clinic. Respondent also did not have a record which related to the storing, labeling, or administering of the controlled substances that he utilized during the declaw procedure on the Hawkins’ cat.
Recommendation Based on the foregoing and in accordance with Petitioner's penalty guidelines, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in Counts II, III, IV, and V of the Administrative Complaint; imposing an administrative fine of $1000; and placing Respondent on probation for one year upon reasonable terms and conditions to be established by the Board of Veterinary Medicine. DONE AND ENTERED this 24th day of March, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 24th day of March, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William R. Dudley, Jr., D.V.M. 613 Westwood Drive Milton, Florida 32570 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Currie, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
