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 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 case are whether Respondent committed the violation alleged in the Administrative Complaint, and if so, the penalty that should be imposed.
Findings Of Fact Petitioner, the Department of Business and Professional Regulation, is the state agency charged with the duty to regulate the practice of veterinary medicine in Florida pursuant to chapters 455 and 474, Florida Statutes. At all times material to this proceeding, Respondent Philip J. Aleong has been licensed as a veterinarian in the State of Florida, having been issued license number VM 6466. Respondent obtained his veterinary degree from Tuskegee University in 1994, and began to practice veterinary medicine in Florida the same year. In 1996, Respondent moved to Maryland, where he was employed at a race course for approximately two years. Respondent returned to Florida in 1997 or 1998, where he has continued to practice veterinary medicine. From the evidence adduced during the final hearing, it appears that much of Respondent's practice involves the provision of prophylactic, pre-race medical services to thoroughbred racehorses. Prior Misconduct Relevant to Respondent's Second Affirmative Defense On September 14, 2006, Petitioner filed an administrative complaint that alleged, in part, that Respondent failed to maintain radiographs and other records related to a pre-purchase examination of racehorse "C. Brooke Run," which was conducted in April of 2003 at the Ocala Breeders' Sale. Pursuant to Respondent's request for a formal hearing to contest the allegation, the matter was referred to DOAH in May 2007 and assigned Case No. 07-2415. On April 2, 2008, following the conclusion of the proceedings at DOAH, Petitioner entered a Final Order reprimanding Respondent, placing his license on probation for six months, and imposing a $1,000 fine.5 The Instant Complaint On or about March 14, 2006, Petitioner6 served Respondent with six subpoenas duces tecum, which directed him to produce all documents or other veterinary records concerning the following racehorses: "Musical Beat," "Orlik," "Suave Prince," "Fast Tracker," "Dondoca," and "Bolido." Subsequently, on May 30, 2006, Respondent provided the requested documents, which related to veterinary services provided to the horses on various dates during 2004 and 2005. Three months later, on August 25, 2006, an investigative report was completed and forwarded at some point thereafter to Petitioner's legal department. Subsequently, on January 4, 2008, Petitioner filed an Administrative Complaint against Respondent that is the subject of this proceeding. Although Respondent filed an Election of Rights form on February 4, 2008, which requested a formal administrative hearing, the matter was not referred to DOAH until April 30, 2010. Petitioner's sole witness at the final hearing in this cause was Dr. Faith Hughes, who was accepted by the undersigned as an expert in the field of veterinary medicine. Dr. Hughes testified that at the request of the Department, she had examined the medical records provided by Dr. Aleong to determine if they complied with the requirements of section 474.214(1)(ee) and Florida Administrative Code Rule 61G18-18.002. Dr. Hughes opined, and the undersigned agrees, that the records of six horses suffered from various deficiencies, which included: "Musical Beat": Medications were administered, but the frequency was not specified for any of the drugs. In addition, while blood work was done, the records fail to indicate why blood was drawn or what the result was. "Orlick": Medications were administered, such as Bactrim, but no amount or frequency was indicated. "Suave Prince": Penicillin and other medications were administered, but no amount or frequency was recorded. "Fast Tracker": Although the records indicate that blood work and radiographs were taken, no results were documented. Further, it could not be determined from the November 15, 2004, record if Depo Provera or Depo Medrol was administered, as the record merely indicates the abbreviation "DEPO." In addition, the records failed to demonstrate the frequency the various drugs were administered. Finally, while blood work was done, the records contain no results. "Dondoca": With respect to each medication administered, which included Bactrim and Cortisone, there was no indication as to the dosage or frequency. "Bolido": Medications were administered, but the amount and frequency were not documented with respect to each. Further, the records indicate that radiographs were taken, but no findings were documented. In his defense, Respondent presented the testimony of Dr. Joseph Zerilli, who was accepted by the undersigned as an expert in veterinary medicine. Dr. Zarelli opined that the records concerning each of the horses contained sufficient information to comply with the applicable statute and rules. Similarly, Respondent testified on his own behalf that the records relating to each of the horses were adequate. The undersigned is not persuaded by the testimony of Respondent or Dr. Zarelli on this point. However, Respondent testified, credibly, that no animal was harmed, nor was the public endangered, as a result of the alleged recordkeeping violations in this matter. Respondent further testified, and the undersigned accepts as true, that negative action against his license (i.e., suspension or revocation) would detrimentally affect his livelihood. Ultimate Findings The undersigned accepts Dr. Hughes' testimony as detailed in paragraph ten of this Recommended Order and finds, as a matter of ultimate fact, that Respondent violated section 474.214(1)(ee).7 Respondent has failed to prove his first affirmative defense, wherein he alleges that Petitioner is arbitrarily and selectively applying its rules against him based in part on his race. No evidence was adduced by Respondent to demonstrate that Petitioner has declined to prosecute similarly situated persons (i.e., veterinarians accused of inadequate recordkeeping). Respondent also failed to demonstrate that the instant charge should have been brought in an earlier administrative proceeding, and as such, there is no showing that Petitioner impermissibly engaged in a "splitting of the action." Accordingly, Respondent's second affirmative defense is rejected. With respect to his third affirmative defense, Respondent demonstrated a substantial delay in the prosecution of this matter that violated the requirements of section 455.25(4), Florida Statutes. However, this affirmative defense is also rejected, as Respondent was unable to demonstrate that the delay resulted in prejudice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board enter a final order finding that Dr. Phillip J. Aleong violated section 474.214(1)(ee), Florida Statutes. It is further recommended that the Board issue a letter of reprimand, place Dr. Aleong's license to practice veterinary medicine on probation for a period of six months, and require that he pay a fine of $1,500.00, as well as $203.74 for the costs of investigation,10 within 90 days of the entry of the final order. DONE AND ENTERED this 29th day of December, 2010, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER 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 29th day of December, 2010.
