The Issue Whether Respondent's B license to practice veterinary medicine in the State of Florida should be suspended, revoked, or otherwise disciplined for the reasons set forth in the Administrative Complaints filed in the above-styled consolidated cases.
Findings Of Fact Petitioner, DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, is the agency of the State of Florida vested with statutory authority for instituting disciplinary proceedings to enforce the provisions of Chapter 474, Florida Statutes, governing the practice of veterinary medicine. Respondent, MARIANNE T. KEIM, D.V.M., is, and at all times material hereto has been, a licensed veterinarian in the State of Florida, holding license number VM 0005113. Findings as to Case No. 95-324 On May 31, 1994, Mrs. Julie Panatela presented her six-month old female canine named Godly to Respondent's clinic in Tampa, Florida, for the purpose of having a spay procedure performed. Godly is a mixed-breed dog of primarily golden retriever parentage. Mrs. Panatela left Godly at Respondent's clinic at approximately 8:30 a.m. At that time Godly was in good health, and had no prior surgical procedures. On June 1, 1994, Respondent performed a spay procedure on Godly. Respondent was assisted during the surgery by Lori Burden, a veterinary assistant employed by Respondent. There were no gauze sponges present in the dog's abdomen when Respondent opened the body to perform the spay procedure. A canine spay procedure, an ovariohysterectomy, is the surgical removal of the dog's uterus and both ovaries. The procedure requires the dog to be placed under a general anesthesia. A sterile prep scrub is done. An incision is made in the abdomen below the umbilicus. In removing an ovary, clamps are placed on the ovarian pedicle to compress the tissue so that ligatures, i.e. sutures, may be tightly applied to the area. The purpose of this procedure is to close the blood supply so that the ovary may be removed. Similarly a clamp and ligatures are applied to the uterine body so that the organ may be removed. After removal of the uterus and ovaries, the abdomen is closed, usually in three layers. First the ventral midline, linea alba, is closed, then the subcutaneous layer, and finally the skin. There is little bleeding associated with this procedure. While there may be some seepage, only a few tablespoons of fluid is normal. Prudent veterinary practice requires the counting of sponges during a surgical procedure. Respondent has performed hundreds of canine spay procedures. It is Respondent's normal practice to always hold sponges in her fingers during surgery, and not to place sponges unattached inside an animal's body. As a routine practice Respondent's employed assistants are instructed to count sponges during any surgical procedure. On June 1, 1994, Lori Burden was the veterinary assistant responsible for counting sponges during the spay procedure Respondent performed on Godly. Six sponges were used during the procedure, four while inside the dog, and two during closing. Ms. Burden believed the sponge count to be accurate, and that all sponges were accounted for, and properly disposed of after Respondent completed the spay procedure. On the afternoon of June 1, 1994, Mrs. Panchal's husband, Raja Panatela, picked Godly up from Respondent's clinic and took the dog home. The Panchals observed that Godly was very lethargic, unusually inactive, and had difficulty going to the bathroom. Additionally, the Panchals observed about a quarter of a cup of pinkish fluid draining from the incision site. Goldie's condition continued to deteriorate that evening. More fluid was draining from the incision, and the dog was increasingly listless. The Panchals became extremely concerned about Goldie's worsening condition, and on the next day, June 2, 1994, Mr. Panatela returned with Godly to Respondent's clinic. Mr. Panatela reported to Respondent his observations, and expressed his concerns regarding Goldie's condition. Respondent examined the incision and stated to Mr. Panatela that it looked fine. Respondent did not diagnose any significant problems with Godly, and placed a belly wrap around the dog's abdomen to absorb any seepage. Mr. Panatela returned home with Godly. During the evening Goldie's condition continued to worsen. The dog remained listless and more fluid was discharging from the incision. The next morning, June 3, 1994, Mrs. Panatela discussed the dog's condition with her neighbor. Later that morning, at her neighbor's suggestion, the Panchals presented Godly to G. Brooks Buck, D.V.M., a veterinarian operating a clinic in Valrico, Florida. The Panchals informed Dr. Buck that Godly had been spayed on June 1, 1994, and that since the procedure was performed the dog had been abnormally listless, had difficulty going to the bathroom, and that significant amounts of fluid were discharging from the incision site. The Panchals did not inform Dr. Buck at this time that Respondent had performed the spay procedure on Godly. Dr. Buck's initial observation of the incision site revealed no problems, and the skin incision appeared well sutured; however, when Dr. Buck picked Godly up to place her on the floor a large amount of fluid, approximately one-half cup, discharged from the incision site. Dr. Buck then became very concerned, and recommended to the Panchals that the incision be reopened so that he could determine the cause of the fluid discharge. The Panchals agreed, and on June 3, 1994, Dr. Buck reopened the incision. During his surgery, Dr. Buck found no signs that the subcutaneous tissue layer had been sutured. Dr. Buck further observed that two-thirds of the caudal layer incision through the abdominal wall had been sutured with chromic catgut and steel; however, the final third of the caudal layer incision showed no sign of having been sutured. Dr. Buck observed fluid leaking through the unsutured portion of the caudal incision into the abdominal cavity. Inside the abdominal cavity Dr. Buck observed that the omentum appeared red and irritated, as did the peritoneal wall. Dr. Buck also observed a wad-like mass within the abdominal cavity which, upon closer inspection, he discovered to be a surgical sponge that had become surrounded by the omentum. Dr. Buck cut the retained sponge from the omentum and removed the sponge from the dog's abdomen. After removing the retained sponge, Dr. Buck further observed that the ovarian and uterine stumps were irritated, and that the right ovarian stump was leaking blood from a nicked artery. Dr. Buck sutured the ovarian and uterine stumps, as well as all three layers of incision, and discharged Godly. Godly recovered from Dr. Buck's surgery without further complications, and on June 13, 1994, Dr. Buck removed the sutures. Godly is now in good health. It is standard veterinary practice to count sponges before and after surgery. It is standard veterinary practice in a canine spay procedure to suture the subcutaneous layer of incision. It is standard veterinary practice in a canine spay procedure to completely suture the linea alba incision. Excessive discharge of fluid after a canine spay procedure indicates an abnormality. It is standard veterinary practice to recognize that excessive fluid discharge after a canine spay procedure indicates an abnormality and requires treatment. Findings as to Case No. 95-327 On Wednesday, July 27, 1994, Mrs. Nan Sherwood presented her cat, Mollie, to Respondent's clinic. Mrs. Sherwood informed the clinic staff that Mollie was acting unusually shy and had no appetite. At this time Mrs. Sherwood did not see or speak with Respondent. Mrs. Sherwood left Mollie at Respondent's clinic for treatment. Mrs. Sherwood was very concerned about Mollie's condition. When Mrs. Sherwood had not received any information from Respondent, she returned to Respondent's clinic on Friday, July 29, 1994. Mrs. Sherwood saw Mollie, observed that the cat's condition had worsened, and requested to speak to Respondent. A clinic staff technician told Mrs. Sherwood that Respondent would contact her later. Respondent did not, however, contact Mrs. Sherwood. When Mrs. Sherwood did not hear from Respondent, she placed a call to Respondent's emergency telephone number on the evening of July 29, 1994. Mrs. Sherwood did not hear from Respondent that evening. The next morning, Saturday, July 30, 1994, Respondent telephoned Mrs. Sherwood and informed her that the cat was being administered fluids, that diagnostic tests on Mollie were being conducted, and stated that she would call Mrs. Sherwood again on Sunday, July 31, 1994, between 11:00 a.m. and 1:00 p.m. On Saturday night, July 30, 1994, Respondent returned to her clinic and examined Mollie. At approximately 11:30 p.m., while Respondent was examining Mollie on the examination table, the cat died. The cause of death was advanced kidney disease and diabetes. The medical therapy administered by Respondent to Mrs. Sherwood's cat, Mollie, met acceptable standards of veterinary practice. After the cat's death, Respondent had the cat's body placed in the freezer at her clinic along with other animal remains scheduled for cremation. Due to a personal emergency, Respondent did not place a call to Mrs. Sherwood until after 3:00 p.m. on Sunday, July 31, 1994. At this time Mrs. Sherwood was in the shower, and her husband, Robert Sherwood, answered the telephone. Respondent informed Mr. Sherwood that the cat had died. Mr. Sherwood was very concerned that Respondent had been unresponsive to his wife and had failed to inform them in a timelier manner that the cat had died. Respondent asked Mr. Sherwood about the disposal of the cat's remains, and Mr. Sherwood informed Respondent that his wife would contact her later. Mr. Sherwood did not authorize cremation of the cat's remains. On Monday, August 1, 1994, Mrs. Sherwood spoke by telephone with Respondent. Mrs. Sherwood was interested in understanding the cause of her cat's death and why Respondent had not notified her earlier regarding the cat's death. Respondent told Mrs. Sherwood about her personal problems which had occurred on the weekend. Mrs. Sherwood was not satisfied with this explanation, but told Respondent she would come by for Mollie's body. Mrs. Sherwood did not authorize cremation of Mollie's body. On Wednesday, August 3, 1994, Mrs. Sherwood again spoke with Respondent by telephone. Mrs. Sherwood told Respondent she was coming to Respondent's clinic to pick up Mollie's body. At this time Respondent told Mrs. Sherwood that the cat's body had probably been taken on Tuesday for cremation, and that Mrs. Sherwood could come later to pick up the ashes. At this point Mrs. Sherwood became extremely upset because she had not authorized cremation of Mollie's remains. Mrs. Sherwood then called the offices of Petitioner to inform the Department of the circumstances surrounding Respondent's actions in regard to the death of Mollie. That same day, August 3, 1994, Mrs. Sherwood went to the Petitioner's office in Brandon, Florida, met with Diane Gusset, an agency investigator, and filed a statement detailing these events. Mrs. Sherwood also signed a form for Ms. Gusset authorizing the release of Mollie's records, as well as Mollie's remains, if still on the clinic premises. On Thursday, August 4, 1994, at approximately 10:00 a.m., Ms. Gusset, accompanied by Dennis Force, also an agency investigator, went to Respondent's clinic for the purpose of retrieving the records of Mrs. Sherwood's cat, and the cat's remains if on the premises. Upon arrival at the clinic, Investigator Force identified himself and Ms. Gusset to Respondent's staff as officials of the Department and requested access to the clinic. The staff went to inform Respondent about the presence of the Department investigators. During this time, the Department investigators proceeded into the clinic. Ms. Gusset entered the surgery area where Respondent was performing surgery. Ms. Gusset asked for the Sherwood records, but Respondent informed her the records were not on the premises. While inside the clinic, the investigators observed that the kennels had not been recently cleaned, and dogs in the outside kennels needed water. The investigators also saw eight containers of medication which appeared out of date; however, the medication containers contained small amounts of medicine, and there is no evidence that Respondent administered out-of-date medication. One container of hydrogen peroxide which appeared out of date was actually a reusable container. Ms. Gusset and Mr. Force also discovered the remains of Mrs. Sherwood's cat, Mollie, in the freezer at Respondent's clinic. By this time Respondent had contacted her attorney who requested Ms. Gusset and Mr. Force leave the clinic premises. After consulting with the Department's attorney, the investigators left the clinic. Respondent's clinic staff regularly cleans the premises. On the morning of August 4, 1994, when the Department investigators arrived, the clinic staff was in the process of, but had not yet completed, the cleaning of the kennel area. Respondent has instituted procedures in her clinic to monitor the dispensing of medications, and to update the effective dates of medications administered. There is no evidence Respondent administered outdated medication.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Veterinary Medicine enter a final order in DOAH Case No. 95-0324 suspending Respondent's license to practice veterinary medicine for a period of six months, placing Respondent on probation for a period of two years under supervised practice, imposing a fine of $1000, and requiring Respondent to attend additional continuing education courses in organizational skills, and veterinary medical therapy. It is further recommended that the Board of Veterinary Medicine enter a final order in DOAH Case No. 95-0327 dismissing the Administrative Complaint. RECOMMENDED this 17th day of January, 1997, in Tallahassee, Florida. Hearings Hearings RICHARD HIXSON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 17th day of January, 1997. COPIES FURNISHED: Miriam S. Wilkinson, Esquire James Manning, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michael J. Kinney, Esquire KINNEY, FERNANDEZ and BOIRE, P.A. Post Office Box 18055 Tampa, Florida 33679 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Susan Foster, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The 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 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
Findings Of Fact The parties stipulated that the following factual allegations contained in the Administrative Complaint were admitted by the Respondent and were not at issue at the formal hearing. The following findings of fact are based on that stipulation. Petitioner is the state agency charged with regulating the practice of veterinary medicine pursuant to Section 20.165, Chapter 455, and Chapter 474, Florida Statutes. Respondent is a licensed veterinarian having been issued license number VM 0000231. Respondent's last know address is DBA (sic) Miami Veterinary Hospital, 3520 N.W. 36th Street, Miami, Florida 33142. On or about May 19, 1992, J.F. presented his kitten, aged approximately seven months, to Respondent for shots, a spay, and boarding. On or about May 19, 1992, Respondent noted in the kitten's [medical] records that all of its vital statistics were "ok" or normal. On or about May 20, 1992, Respondent spayed the kitten. 1/ On or about May 21, 1992, Respondent noted in the kitten's records that it had diarrhea and no appetite. 2/ On or about May 22-24, 1992, Respondent noted in the kitten's records that it was treated with antibiotics, fluids, vitamins, and given intensive care (sic) with hand-feeding. On or about May 25, 1992, Respondent noted in the kitten's records that its condition was greatly improved. On or about May 26, 1992, Respondent noted in the kittens's records that its condition was normal. On or about May 27, 1992, the kitten died. 3/ "Spay" is a layman's term which may refer to an ovariohysterectomy. Respondent failed to perform any lab work on the kitten when it became ill during the period after the surgery and until its death. Rule 61G18-18.002(1), Florida Administrative Code, provides that medical records shall contain all clinical information pertaining to the patient with sufficient information to justify the diagnosis or determination of health status and warrant any treatment recommended or administered. Respondent had been practicing veterinary medicine in Florida for 48 years at the time of the formal hearing. Respondent testified, credibly, that he has performed a minimum of 10,000 spays during the course of his practice. At the times pertinent to this proceeding, Respondent was the owner and sole practicing veterinarian at Miami Veterinary Hospital in Miami, Florida. On May 19, 1992, James Forney presented his cat named Cathy to Respondent's clinic to be boarded for one week. During that week, the Respondent was to spay Cathy and give her any appropriate shots. "Spay" is a layman's term that may refer to an ovariohysterectomy. The term ovariohysterectomy is generally understood by veterinarians to be a procedure during which the ovaries and both horns of the uterus are removed. On or about May 20, 1992, Respondent spayed Cathy. Respondent placed the cat under anesthesia and made a small incision, which he referred to as a "bottle hole incision". Through this small incision, he removed the ovaries and a portion of both uterine horns. He did not remove the stumps of either uterine horn and he did not remove the uterus. The cat died on May 27, 1992. Dr. James Bogdansky performed an autopsy of Cathy on May 28, 1992, during which he made contemporaneous records of his examination. Dr. Bogdansky observed that Cathy's uterus and portions of both uterine horns were present. The ovaries were not present. There was a dispute in the evidence as to whether the Respondent was negligent by failing to remove all portions of both horns of the uterus when he spayed the cat. The testimony of Dr. Ellison and that of Dr. Diluzio established that the preferred medical practice in performing an ovariohysterectomy is to completely remove through an appropriately placed and sized incision the ovaries, all portions of both horns of the uterus, and the uterus. Dr. Ellison testified that there is no medical benefit to leaving portions of both uterine horns and the uterus and that the chance of a rare, life-threatening infection (pyometritis) increases when the horns of the uterus are not removed. 4/ Dr. Ellison further testified that the portions of the uterine horns not removed may become wrapped around the bladder, causing adhesions or strictures on the bladder. 5/ Dr. Ellison was of the opinion that Respondent was negligent in failing to remove both uterine horns and the uterus. 6/ From the testimony of the Respondent and Dr. Diluzio, it is found that veterinarians in South Florida commonly make a small incision which permits the removal of the ovaries and thereby sterilizes the animal, but does not permit the removal of the two horns of the uterus in their entirety. The practitioner has to exercise clinical judgment to determine how much of the horns of the uterus will be left. The main benefit of using a smaller incision is that the animal suffers less trauma from the surgery. Dr. Diluzio agreed that the method described by Dr. Ellison was the preferred method of performing an ovariohysterectomy. Dr. Diluzio's main concern was that a subsequently treating veterinarian may assume that the Respondent had removed both uterine horns and the uterus, which could lead to a misdiagnosis in the event the cat ever had a uterine infection. Notwithstanding his concern and the concerns expressed by Dr. Ellison, Dr. Diluzio did not believe that the method used by the Respondent was below an accepted standard of care. Dr. Diluzio's opinion is buttressed by evidence as to procedures being followed by practitioners such as the Respondent. It is concluded that the Petitioner did not establish that the procedure Respondent followed in spaying Cathy was below an accepted standard of care. In reaching that conclusion, the undersigned is persuaded by the testimony of Dr. Diluzio that the procedure followed by Respondent in spaying the cat, Cathy, is not an uncommon procedure. Since there was no evidence that he used poor clinical judgment in the procedure he followed, it is found that Petitioner failed to establish that Respondent was negligent or incompetent by his spay of the cat, Cathy. Petitioner asserts that the Respondent failed to adequately look for a working diagnosis of the cause of the cat's illness following surgery. The Respondent was not asked what his diagnosis was for the postoperative illness. From Dr. Diluzio's testimony based on the antibiotics and other treatment administered, it appears that the working diagnosis was infection of unknown etiology. Respondent did not perform any lab work on the cat in the postoperative period to determine the cause of the illness. Instead, Respondent treated the cat symptomatically. The spay occurred on or about May 20, 1992. The medical records noted that the cat had no appetite on May 21, 1992. The scanty medical records note that the cat began to improve on May 25, 1992. The cat's physical condition between the onset of the improvement and the date of improvement is not reflected by the medical records. The evidence established that Respondent closely monitored the cat's condition following the surgery and that he administered treatment to the cat. Except for Dr. Ellison's question as to why the steroid prednisone was administered, Dr. Ellison and Dr. Diluzio found no fault with the treatment actually administered by Respondent. Dr. Ellison was of the opinion that Respondent was negligent in failing to perform basic blood tests, including a complete blood count, because such tests may have determined the cause of the cat's illness or indicated the proper course of treatment. Blood tests could also have helped determine whether the cat was hemorrhaging internally. Dr. Diluzio was of the opinion that it was acceptable practice to treat the cat symptomatically for the first few days after surgery without ordering lab work. Dr. Diluzio opined that since the cat appeared to improve between the onset of the illness and its death, lab work was not necessary in this case. Because of these conflicting opinions, both of which are supported by logical rationale, it is concluded that the Petitioner failed to establish that Respondent exceeded his clinical judgement or that he practiced below an accepted standard of care in his postoperative treatment of this cat by treating the cat symptomatically instead of ordering lab tests. On May 19, 1992, Respondent began a medical record for Cathy on a form that contained an area for identifying information as to the owner and as to the animal. The form also had spaces to record the findings of a physical examination, a description of any abnormal symptoms, any diagnosis made, any treatment administered, and any appropriate remarks. On May 21, 1992, continuing through May 24, 1992, Respondent noted in Cathy's records that she was treated with antibiotics, fluids, vitamins, and given intensive care with hand-feeding. The medical records should have reflected the Respondent's working diagnosis for the cat's illness so as to justify the treatment administered. The records do not contain a working diagnosis for the cat's illness and failed to justify the treatment administered. The medical records should have reflected the dosages of antibiotics given to the cat. The records do not record the dosages of antibiotics given to Cathy. The medical records should have stated the reason(s) the cat was given one cc. of the steroid prednisone (referred to in the records as "pred"). There were no medical records kept that justified the administration of this steroid. The medical records should have reflected the findings of his physical examinations following the surgery. The medical records kept by Respondent did not reflect the findings of his physical examinations of the cat during that period. He failed to document the physical examinations he made after the cat's operation. He did not record the cat's weight, its daily temperature, or the dosages of the antibiotics administered. Petitioner established that the postoperative care given the cat was not adequately documented by Respondent's medical records. Respondent had never, prior to this proceeding, been the subject of a disciplinary action by the Department. During the course of his practice, Respondent served four years on the Board of Veterinary Medicine for the State of Florida, has served as the president of the South Florida Veterinary Association and as the treasurer of the state association.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. Based on those findings and conclusions, it is recommended that Petitioner find Respondent not guilty of the violations alleged in Counts One and Four of the Administrative Complaint, and guilty of the violations alleged in Counts Two and Three of the Administrative Complaint. For the violations of Counts Two and Three, it is recommended that the Petitioner issue Respondent a formal reprimand and place his licensure on probation for a period of six months. DONE AND ENTERED this 1st day of September, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of September, 1995.
The Issue Whether Respondent's license to practice veterinary medicine should be revoked or suspended for alleged violation 474.14(1), 474.15, and 474.31 (1), and (6), Florida Statutes. This case was consolidated by order of the Hearing Officer issued December 5, 1975, with Florida Board of Veterinary Medicine vs. Harold M. McGee, D.V.M., Docket No. 751926 because the cases involve similar issues of law and fact. At the hearing, Respondent was advised of his right to employ legal counsel at his own expense to represent him. He elected to appear in his own behalf. He was then advised of his rights under the Administrative Procedure Act, including the right to testify in his own behalf, if he so desired. He indicated that he understood these rights.
Findings Of Fact Respondent was licensed by the Board of Veterinary Medicine on July 27, 1975 and was not licensed on March 4, 1975. On March 4, 1975 Respondent was employed by Dr. Harold M. McGee, D.V.M., at his place of business located at 3520 Northwest 36th Street, Miami, Florida. On March 4, 1975, Chery Lynn Correa, along with Dr. Calvin Dugas, D.V.M., both employees of the Knowles Animal Hospital in Miami took a Doberman Pinscher to Dr. McGee's clinic. Their visit was prompted by a request of their employer, Dr. Knowles, who had asked them to check a complaint that there were unlicensed veterinarians working for Dr. McGee. Without disclosing their purpose, Correa informed the receptionist that she had brought the dog to get rabies and distemper shots and to have some bumps on its neck checked. She and Dr. Dugas were referred to Respondent in the treatment room. He checked the dog and told them that the bumps were due to an improper diet. He then administered inoculations for rabies and distemper and checked the animal for worms. He also looked at the dog's throat and diagnosed tonsilitis for which he prescribed tetracycline pills. He also procured liquid shampoo called Tergex for a skin problem and gave instructions to bathe the dog once a week. He gave two more injections of antibiotics and cortisone. The receptionist signed Dr. McGee's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Respondent signed Dr. McGee's name to a Canine Interstate Health Certificate reflecting the administration of the inoculations. Correa paid the bill of $43.00 and then she and Dr. Dugas departed. During the time they were at the clinic, they did not see Dr. McGee on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3). However, Dr. McGee was in the back office at the time in question suffering from a headache and had asked his receptionist to have Respondent give routine shots to animals during the day and only call him if a diagnosis was necessary. In view of Respondent's lack of a Florida license, Dr. McGee did not permit him to diagnose, treat, or incise skin of an animal without supervision. In accordance with these directions, Respondent always checked with Dr. McGee on a diagnosis and the latter would then prescribe the proper treatment. Respondent followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Dr. McGee as to the treatment that was thereafter performed. Respondent was not licensed by the Florida Board of Veterinary Medicine until July 27, 1975. Dr. McGee professed the belief at the hearing that since secretaries could sign distemper and rabies certificates, he felt Dr. Mayo could sign an interstate health certificate although he normally signed such documents himself. Respondent testified that he had worked for the local humane society for over nine years and, during that period, had signed his own name to interstate health certificates by authorization of the board of directors of the society. The receptionist took the interstate health certificate in question to Respondent to sign because he had administered the shots to the animal. She was unaware of the fact that he was unlicensed (Testimony of McGee, Mayo, Uriquize, Petitioner's Exhibit 2). Respondent was head of the Veterinary Services of the Cuban rebel army at the time he came to the United States. He has been a veterinarian since 1948. He is active in the Cuban community of Miami and enjoys a good reputation for truth and veracity in the community (Testimony of Mayo, Reboso).
Recommendation That the charges against Cristobal M. Gonzalez Mayo, D.V.M., be dismissed. DONE and ENTERED day of February, 1976 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire 101 East College Avenue P.O. Box 1752 Tallahassee, Florida Dr. Cristobal M. Gonzalez Mayo 971-A Southwest 8th Street Miami, Florida 33130
The Issue Whether the Petitioner is entitled to an award of Attorney Fees and Costs under the provisions of Section 57.111, Florida Statutes.
Findings Of Fact By Administrative Complaint dated September 3, 1997, the Department alleged that Donald J. Beck (Beck) was incompetent or negligent in his practice of veterinary medicine under Section 474.214 (1)(r), Florida Statutes. The Administrative Complaint further alleged that the Respondent violated Sections 474.214(1)(f) and 455.241(1), Florida Statutes, by failing to furnish medical and examination records in a timely manner. A formal hearing was conducted on January 20, 1999. At the close of the Department's case presentation during the hearing on the Administrative Complaint, Beck moved to have the case dismissed. The motion to dismiss was granted as to the alleged violations related to medical and examination records, and was denied as to the alleged incompetent or negligent practice of veterinary medicine. The factual allegations in the Administrative Complaint involved two dogs boarded at a combination animal clinic and boarding facility identified as "Animal Hospital Hyde Park" in Tampa, Florida. The Animal Hospital Hyde Park facility was owned and operated by another veterinarian not a party to this proceeding. The two dogs were boarded at the facility for a period of months. The owners of the dogs had minimal contact with the animals during the boarding period. During the boarding period, the owners had informed the facility staff that the dogs were overweight and that the animals should be placed on restricted diets. After being notified by the facility owner that the facility was being closed, the owners retrieved the dogs and were apparently unhappy with the condition of the animals. The dog owners took the animals to another veterinarian, Dr. Jerry Alan Greene, who examined the dogs on August 13, 1996. The dog owners subsequently filed a complaint with the Department, which investigated the case. As part of the investigation, the Department interviewed witnesses including Dr. Greene and a second treating veterinarian. The Department reviewed medical records and photographs related to the animals. The Department also obtained an opinion from Dr. Sheldon Pinkerton, a third veterinarian, who opined that based on his review of the investigative information, Dr. Beck was in violation of Section 474.214(r), Florida Statutes, as well as other statutes and administrative rules. The investigative information and Dr. Pinkerton's opinion were submitted to the Board of Veterinary Medicine's Probable Cause Panel. Based on their review of the information, the Panel determined on August 28, 1997, that there was probable cause to charge Beck with violation of Section 474.214(r) and (f), Florida Statutes. Based on the Probable Cause Panel determination, the Department filed the Administrative Complaint dated September 3, 1997. During the formal hearing on the disciplinary case, the Department presented the testimony of Dr. Jerry Alan Greene, the veterinarian who tested and examined the relevant animals on August 13, 1996. According to Dr. Greene's testimony there was evidence, based on test results, that the animals had hookworms. Based on his examination, Dr. Greene further diagnosed one animal with an ear infection and opined that the animal was "grossly underweight." The other animal was still overweight and had some type of "foot problem." Beck presented the testimony of Dr. Richard Goldston at the formal disciplinary hearing. Dr. Goldston based his testimony on a review of photographs taken of the animals. Dr. Goldston opined that the "underweight" dog, although thin, was healthy. Dr. Goldston also opined that the other animal's "foot problem" was an "acral lick granuloma," which resulted from excessive licking of the area. Based on review of the testimony of the two expert witnesses presented at the formal hearing, the opinion of Dr. Goldston was credited. At the hearing, the Department offered testimony to suggest that Beck had a duty to provide medical care to all of the animals boarded at the facility. The testimony was not persuasive. The evidence presented at the hearing failed to establish that Beck was responsible for the medical needs of all the animals boarded at the Animal Hospital Hyde Park. By a Recommended Order dated March 29, 1999, the Administrative Law Judge recommended that the complaint against Beck be dismissed. By Final Order filed September 16, 1999, the Department of Business and Professional Regulation, Board of Veterinary Medicine adopted the Recommended Order and dismissed the Administrative Complaint.
The Issue Whether Respondent's veterinary license should be disciplined.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed doctor of veterinary medicine, having been issued License No. VM 0003845 by the Board of Veterinary Medicine on July 1, 1985. During his career, Respondent has taught at the University of Florida veterinary school, developed patents in the field of veterinary medicine, performed research in the veterinary field, and become certified in veterinary laser surgery. Because he does research and because his wife/veterinary partner frequently provides follow-up care, Respondent is a meticulous record keeper. Precious was a grossly obese, 11-year-old, female English bulldog. She was owned by the Salters and had been previously treated by the Respondent. In fact, the Salters were friends of some of the clinic's staff who treated her. On July 7, 1999, the Salters brought Precious to Respondent for emergency treatment. Precious was experiencing respiratory distress and had cyanotic mucous membranes indicating a lack of oxygen. Her condition was growing worse and life-threatening. Because of the emergency nature of Precious' condition, Respondent immediately began a physical examination of the dog to determine what was causing her inability to breath properly. At the same time, Respondent began a series of notes on Precious' record of treatment and examination. The notes contained in the record of treatment and examination are clearly preliminary and hurried. Some of the writing is that of other clinic staff. Most of the writing is Respondent's. The notes are consistent with the frenetic nature of the emergency. They included a checklist of various possible tests and treatments to be performed by Respondent or clinic staff, general impressions of the dogs physical condition, and possible medical causes to be ruled in or out (that is, tonsilar lymph nodes, soft palette resection, and tonsillectomy). The record, while lacking some information, does contain sufficient information to reflect Precious' condition, diagnosis, and course of treatment. Throughout the time Precious was at the clinic, the clinic staff or Respondent performed the various tests and treatments listed in the record of treatment. As each task was completed the task was checked off the checklist and results filled in, if possible. If it was not possible to fill in the results on the record of treatment, results would be noted by another method such as medical reports, logs, or note cards. In fact, Respondent makes notes regarding treatment, results, etc., of a particular animal on index cards because the larger, more formal veterinary record of an animal is often not carried around to the different places where an animal may be located in the clinic. The index cards are small and can be carried in Respondent's shirt pocket. Use of the cards was the record keeping procedure taught to him while in veterinary school at the University of Florida and is his primary contemporaneous record for an animal. Information on the note cards would later be recorded in an animal's permanent file. Respondent followed this process with Precious. However, Respondent's note cards for Precious are missing. Respondent's entries in Precious' medical record reflect some of the measures that were taken to save Precious' life. One such measure was to place Precious on an IV of lactated ringer solution (LRS in the record of treatment). However, no amount of solution was listed because when the note was made, placement of the IV was a task to be done, and the amount of solution would have been initially recorded on the index cards for Precious once treatment was complete for later entry in Precious' permanent record. Indeed the amount of solution was written on Respondent's note cards for Precious. The physical examination of Precious revealed that she had aspirated part of her mouth tissue in the epiglottis pharyngeal area of her mouth. The loose tissue appeared to be scar tissue from a previous operation or a tumor. Such loose tissue is not uncommon in English bulldogs and was exacerbated in Precious due to her obesity. Because the tissue was blocking her airway, Precious was put under anesthesia for placement of an intratrachial tube to open an airway, to complete a non- invasive ultrasound examination and to begin preparation for removal of the loose tissue. Information on the type and amount of anesthesia was kept in the controlled substances medication list and a missing anesthesia log for heart and respiration, as well as the missing index cards kept by Respondent. After placement of the tube inside Precious' airway, her condition began to improve. However, she was still in a very critical, life-threatening condition. At 2:00 p.m. Precious went into cardiac arrest. Epinephrine and Doxapram, medications used to control cardiac arrest, were administered and cardio-pulmonary resuscitation was performed. The amounts of the Epinephrine and Doxapram were not recorded in the record of treatment but were recorded on the missing note cards. Precious recovered from her cardiac arrest and was somewhat responsive to external stimuli. However, she was not aware of her surroundings and had dilated pupils. She did not recover from the coma and, subsequently, was euthanized with the owners permission. Again the amount of euthanasia solution was written on the Respondent's index cards. Because of the monitoring Precious required during the day and the other requirements of other patients at the clinic, Respondent placed Precious' permanent veterinary record and his index card notes on his desk so that he could permanently record the information in Precious' permanent file. Respondent could not finalize Precious' record until two days later because of the work load at the clinic. However, when Respondent went to finalize the record, he discovered that Precious' veterinary record, along with his index card notes and various logs and reports regarding Precious, had been stolen from his office. The office and premises were thoroughly searched by Respondent, his wife, and clinic staff. No records were found. Approximately three weeks later, part of the veterinary record reappeared at the clinic. However, it was apparent that some records in the recovered file were altered or were missing. The 3 x 5 index cards of Respondent's notes were missing. The dog owner's standard consent form for procedures on July 7, 1999, was missing and the original anesthesia log was missing. The anesthesia log, which was returned with the file, was prepared by another person who did not perform clinical tasks at the clinic. The log did not contain entries for heart and respiration which had been made by either Respondent or his assistant, Ric Berlinski. For unknown reasons a false log had been substituted for the original log by whoever had taken or had the file during its absence from the clinic. Respondent reasonably did not trust his memory to complete the veterinary records on Precious. Respondent made a decision not to change the recovered records in any manner lest he be accused of altering the records knowing that other parties may have copied the records in addition to removing and altering certain records. He felt not adding to the records was reasonable since there was no future need for the records to treat the deceased animal, the record would not be used in any research and had no educational purpose. In fact, neither the statute nor rules of the Board contain any guidance on the action a veterinarian should take under circumstances where a veterinarian, through no fault of his own such as theft, fire or disaster, is prevented from completing or maintaining an animal's veterinarian record. In response to the Salters' complaint in regard to Precious' treatment, Respondent was requested to provide Richard Ward, the investigator for the Department of Business and Professional Regulation, with records relating to Respondent's treatment of Precious. Respondent failed to inform Mr. Ward that Respondent believed the records had been tampered with or that he believed the medical records had been stolen. Respondent also failed to provide Mr. Ward with the controlled substance log containing the entries relating to the treatment of Precious because he did not ask for it. At the time, given the complaint, Respondent did not wish to and did not think it prudent to speak with the Department's investigator absent the advice of legal counsel. Therefore, he did not tell the investigator about the problems with the record. Respondent did not mislead the investigator and did not violate any statute or rule of the Board.
Recommendation Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent not guilty and dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of September, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2002. COPIES FURNISHED: C. Robert Edewaard, Esquire Post Office Box 2297 Gainesville, Florida 32602 Tiffany A. Short, Esquire Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
