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 In treating Ms. Cottrell's English bulldog on May 15, 1987: Whether Respondent knowingly concealed information relevant to violations of Chapter 474, Florida Statutes; Whether Respondent knowingly prepared a false report or record; Whether Respondent performed or prescribed unnecessary treatment; Whether Respondent was negligent or guilty of misconduct in this treatment; Whether Respondent falsified records pertaining to this treatment; and Whether Respondent was incompetent or unprofessional in his dealings with Ms. Cottrell.
Findings Of Fact At all times relevant hereto Phillip F. Habib, Respondent, was licensed as a doctor of veterinary medicine as alleged. On May 15, 1987, Ms. Sandra Cottrell came home from work at approximately 5:00 p.m. and observed her three-year-old English bulldog "Jake" to be lethargic, which was unusual. Being familiar with English bulldogs and aware that their state of health can change rapidly, Ms. Cottrell called her veterinarian, Dr. LaDue, who advised her to take the dog's temperature, keep a close watch on the dog and call back with temperature results and any changes in the dog. At this time Ms. Cottrell was living at her mother's home and did not have a thermometer with which to take Jake's temperature. She called Dr. LaDue back to report she was unable to take Jake's temperature but he seemed to be in no present distress. Shortly thereafter Ms. Cottrell decided to take Jake for a walk. By the time they reached the end of the driveway she realized that Jake was acting abnormally and she became concerned. She aborted the walk and decided to take Jake to her veterinarian. By this time Jake had begun to have difficulty breathing. Ms. Cottrell then decided that Jake's condition required emergency intervention and had her sister-in-law look in the telephone book for the nearest animal clinic. That clinic was Hope 'n Happiness Animal Clinic in Clearwater, Respondent's place of business. Ms. Cottrell, accompanied by her sister-in- law, drove Jake to this clinic. Both Hope Habib, wife of Respondent, and Respondent testified that Ms. Cottrell told them upon her arrival that she had been playing frisbee with Jake when he became ill. The only activity of Jake that Ms. Cottrell testified to was attempting to take Jake for a walk. Ms. Cottrell was not called as a rebuttal witness (although she was still present) to confirm or deny the frisbee testimony. Although Respondent testified he didn't know what a frisbee was until he later asked his six-year-old child, the Habibs' testimony is not deemed credible. If, in fact, Respondent was told that Jake had been chasing a frisbee when he became ill this presented a conclusive reason for suspecting Jake was suffering from hyperthermia. Upon arrival at the clinic Jake was carried into the reception area and Hope Habib showed them into an examination room. During this time Jake was wheezing and having difficulty breathing. Respondent promptly started examining Jake with Ms. Cottrell present. English bulldogs are very susceptible to heat prostration or hyperthermia. Up to 50 percent of English bulldogs who get hyperthermia die. This phenomenon is widely known among English bulldog owners and veterinarians. Temperatures above 103 degree F. for English bulldogs need to be reduced quickly. At no time while Jake was being examined and treated by Respondent did Ms. Cottrell see the Respondent take Jake's temperature. Nevertheless, Respondent entered temperature of 103.0 degrees on the medical record (Exhibit 5). He also recorded Jake's weight at 80.0 pounds. Jake's normal weight is 67- 68 pounds. At no time did Ms. Cottrell observe Respondent weigh Jake. When first interviewed by Petitioner's investigator Respondent admitted that he had estimated the dog's weight. Shortly after commencing his examination of Jake, Respondent advised Ms. Cottrell that Jake was having a heart attack and that she had killed her dog by letting him get too fat. Subsequently he diagnosed Jake as having a diaphragmatic hernia which required immediate surgery. X-ray equipment needed to diagnose such a hernia was not available at Hope 'n Happiness Clinic on May 15, 1987. Respondent referred Ms. Cottrell to an emergency animal clinic in Clearwater several blocks distant for surgery. Respondent also called this clinic to alert them of the referral. While treating Jake, Respondent administered some 750 mg soludeltacortef, which is a recommended treatment for animals suffering heat prostration (Exhibit 6). This drug serves to reduce the effects of shock to the animal and it is recommended to be given IV (Exhibit 6). Respondent testified, and his medical record indicate, that soludeltacortef was administered intravenously. Ms. Cottrell testified that Respondent was unable to locate a vein for an IV injection and that several "shots" were given Jake in the hip muscle. In his notes, apparently written later that evening (Exhibit 5), Respondent lists possible diagnoses of: shock, "lung damage or diaphragmatic hernia, heart problem and maybe other diagnosis." He does not include heat prostration as a possible diagnosis. To demonstrate the diaphragmatic hernia Respondent pressed on Jake's abdomen which caused the animal to regurgitate. X-rays subsequently taken in Tampa did not confirm a diaphragmatic hernia. The existence of a diaphragmatic hernia cannot be determined by palpitating the abdomen. During the treatment of Jake by Respondent attempts to administer oxygen were made by placing a face mask over Jake's nose. This was unsuccessful and further agitated the animal. This effort was discarded and Ms. Cottrell was referred to the emergency clinic. Respondent and his wife's testimony that the oxygen given Jake revived him to the extent that he could stand on the floor without assistance and could have walked out of the Respondent's clinic is not credible under the circumstances. During the 30-45 minutes Jake that was being treated by Respondent, Ms. Cottrell was very upset and crying due to her concern for her dog's health. However, she remained in the examining room the entire period but for a few seconds when she went to the lobby to get her sister-in-law to come to the examining room. Hope Habib testified that Ms. Cottrell was in and out of the examining room frequently to make telephone calls while Jake was being treated. Considering the circumstances and the potential bias of the witness the testimony of Ms. Cottrell is deemed more credible. When Ms. Cottrell asked Respondent how long Jake would live she was told anywhere from 30 minutes to 5 hours or more. Upon leaving Respondent's clinic Ms. Cottrell decided to take Jake to Tampa to the clinic of her regular veterinarian. This was a trip of 30-35 minutes as compared to the 5-10 minute ride to the emergency clinic to which she had been referred by Respondent. The weather on May 15, 1987 was normal for that time of year with a high of 83 degrees F. and a low of 71 degrees F. The temperature recorded by the Department of Commerce at the St. Petersburg-Clearwater airport at 5:50 p.m. and 6:51 p.m. was 74 degrees F. (Exhibit 10). Although Ms. Cottrell's car was not air-conditioned, she had the windows down during the drive from Clearwater to Tampa and Jake was in the front seat on the passenger's side during this trip. At the time Jake departed Respondent's clinic, Respondent believed that Jake was being taken to the emergency animal clinic in Clearwater. When he called this clinic to see if Jake had arrived and learned he had not, he then called Ms. Cottrell's home phone where he learned that Jake had been taken to the Tampa clinic. Respondent then called the Tampa clinic and advised the doctor there treating Jake that Respondent had given Jake soludeltacortef and to inquire about the dog. The medical records pertaining to the treatment given Jake by Respondent (Exhibit 5) were prepared after Jake arrived at the Tampa clinic. Respondent's testimony that these notes were prepared that evening is otherwise unrebutted. Upon arrival at the Tampa clinic Jake's temperature was 107 degrees F. and emergency treatment for hyperthermia was begun. The animal was immediately hosed down in an attempt to reduce his temperature. Temperature readings were taken frequently during this period until Jake's temperature was reduced to 103 degrees F. and at a wider spaced interval after that temperature was reached. No evidence was presented regarding the possibility or likelihood of Jake's temperature rising from 103 degrees F. while at Respondent's clinic to 107 degrees F. some 30-45 minutes later when he arrived at the Tampa clinic. The conditions under which this 35-40 minute ride was made was in a non air conditioned but open car with the outside temperature of 74 degrees F. The dog was closely monitored at the Tampa Bay Animal Center after being taken there Friday evening, May 15, 1987. Ms. Cottrell visited the center to see Jake on Saturday, May 16, 1987 when the dog appeared to be semicomatose; and Jake died Saturday evening. Respondent's method of writing medical records in the third person led some witnesses to conclude that these records had been prepared after charges of malpractice were made. Respondent's testimony that he always prepared medical records after the close of the clinic was unrebutted as was the testimony of other witnesses who had reviewed many of Respondent's records that Respondent writes all of his medical records in the third person. After learning of the complaint filed in this case, Respondent telephoned Ellen Trapp, D.V.M., the veterinarian who treated Jake at Dr. LeDue's Tampa clinic, and Dr. LeDue; and indicated that they, as veterinarians needed to stick together. When Dr. LeDue responded that Respondent had failed to properly diagnose Jake's condition by failing to take his temperature, Respondent hung up on him. Respondent also stated to Dr. Trapp that he would not be held responsible for his actions if something happened at the end of this court hearing. To Petitioner's investigator Respondent subsequently denied ever contacting any veterinarian regarding this case.
Recommendation It is recommended that the license of Phillip F. Habib as a doctor of veterinary medicine be revoked. It is further recommended, that the revocation be stayed for a period of 3 years probation under such terms and conditions as the Board of Veterinary Medicine deems appropriate, and that, at the expiration of the three years probationary period, unless sooner vacated, the revocation be set aside and Respondent restored to good standing. ENTERED this 7th day of July, 1989, in Tallahassee, Leon County, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4691 Treatment accorded Petitioner's proposed findings: Included in H.O. #1. Included in H.O. #2, 3, 4. Included in H.O. #4, 5. Included in H.O. #7. Included in H.O. #10. Included in H.O. #9. Included in H.O. #9. Included in H.O. #13. Included in H.O. #11, 12. Included in H.O. #9, 14. Accepted. Accepted in H.O. #10, 15. Accepted. Accepted in H.O. #17. Included in H.O. #15, 16, 18. Included in H.O. #9. Accepted. However, this statement was made long after Jake's death was determined to have resulted from hyperthermia. 18-19. Included in H.O. #11. Accepted. Included in H.O. #22. 22-23. Accepted as conclusions of law. Included in H.O. #8. Accepted Accepted insofar as included in H.O. #12. Accepted only insofar as included in H.O. #13. Included in H.O. #13. Rejected as irrelevant. 30-32. Rejected as irrelevant. Accepted. However, Respondent testified that only a date was added to the record. Rejected as unsupported by credible evidence. Accepted. Treatment accorded Respondent's proposed findings. Included in H.O. #2, 3, 4. Included in H.O. #5. Included in H.O. #8, 14. Accepted as testimony of witness. Accepted insofar as included in H.O. #5, 15. Included in H.O. #14. Included in H.O. #3, 9. 8-9. Rejected as irrelevant. Included in H.O. #16. Accepted. Included in H.O. #3, 9. Irrelevant. Irrelevant. Dr. LaDue was not involved in treatment of Jake. Accepted Included in H.O. #15. Accepted. Rejected as irrelevant when decision made. Included in H.O. #3 and 6. Included in H.O. #10. Accepted insofar as no one could explain the missing X-ray. Rejected as irrelevant. Rejected as irrelevant. Rejected as irrelevant. Accepted. Rejected as unsupported by Douglas' testimony. First sentence accepted. Last sentence rejected. Rejected as irrelevant. Rejected as irrelevant. Rejected as repetitious (see 12). Accepted but irrelevant. Accepted but irrelevant. Rejected. Record shows dog's weight as 80.0 pounds. Irrelevant. Irrelevant. Irrelevant. Dr. Douglas never saw the dog. Irrelevant because of duplicity. Accepted. Accepted but irrelevant. Accepted but irrelevant. Rejected except to the extent that almost anything is possible. Irrelevant. Accepted. Accepted. Accepted as testimony of Mandelker. Irrelevant. Accepted in part. Manner in which Habib prepared records only part of basis for Green's opinion. Irrelevant. Rejected. Accepted but irrelevant here. Irrelevant. Irrelevant. Rejected. No evidence submitted that Jake was ever hypothermic on May 15, 1987. Term hypothermia misused or reporter error. Accepted. Irrelevant. Rejected as unsupported by Cottrell's testimony. Accepted-insofar as in H.O. #13. Rejected. Accepted insofar as included in H.O. #14. Rejected. See H.O. #13. Irrelevant. Irrelevant. Accepted. Accepted. See H.O. #21. Included in H.O. #21. Accepted. Rejected. Habib's testimony in this regard differs from that of his wife. However, the accuracy of the testimony is not material. Rejected. Rejected. Rejected. See H.O. #13. 71. See H.O. #15. Irrelevant. Included in H.O. #17. Included in H.O. #17. 75. See H.O. #21. Accepted. Accepted. Trapp didn't see the dog until he was presented that evening. Irrelevant. Accepted. Accepted. Accepted insofar as included in H.O. #12. Accepted but irrelevant. Irrelevant. Included in H.O. #17. Repetitious. Irrelevant. Irrelevant. Cottrell was not working at the LaDue clinic in May 1987 and was getting no discount at that time. Irrelevant. Accepted. Accepted as Goldston's opinion. Accepted as Goldston's opinion. Rejected. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Louis Kwall, Esquire 138 North Ft. Harrison Avenue Clearwater, Florida 34615 Kenneth Easley Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Linda Biedermann Executive Director Board of Veterinary Medicine Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
The Issue The issues requiring adjudication in this cause concern whether the Respondent's license as a veterinarian in the State of Florida should be revoked, suspended or other discipline imposed for alleged violations of Chapter 474, Florida Statutes. Those violations involve alleged cruelty to animals treated by the Respondent and whether his treatment and behavior toward those animals amounted to fraud, deceit, negligence, incompetence or misconduct in the practice of veterinary medicine. Also at issue are charges in the Complaint concerning whether the Respondent violated the enumerated sections of Chapter 474, Florida Statutes, involving being convicted or found guilty, regardless of adjudication, of a crime which directly relates to the practice of veterinary medicine. It must also be determined whether the Respondent, with regard to some of the animals treated and named in the Complaint, failed to maintain his veterinary medical records in accordance with the related and enumerated subsections of Chapter 474, Florida Statutes, and the related rule. Finally, if the charges, or any of them, are substantiated, the question of a recommended penalty must be addressed.
Findings Of Fact The Petitioner, DEPARTMENT OF PROFESSIONAL REGULATION ("Department"), is an agency of the State of Florida charged with regulating the practice of veterinary medicine pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 474, Florida Statutes. The Respondent, is a licensed veterinarian in the State of Florida, holding license number VM0000710. The Respondent maintains his practice at 820 Creighton Road, Pensacola, Florida 32504. The Respondent is the owner and managing veterinarian of Creighton-Davis Animal Hospital located at that address. Counts One through Three of the Administrative Complaint relate to the allegations that the Respondent intentionally, cruelly and repeatedly struck a dog named "Peaches" belonging to Cynthia Barrera, which had been brought to him for veterinary care. It is alleged that on or about October 9, 1986, after the alleged cruel treatment, the dog was found dead in the Respondent's clinic by a staff member. It is alleged that he told the owner of the dog that the dog had "escaped", knowing that story to be untrue. A former staff member employed by the Respondent, Tina Lyttle, submitted an affidavit to the Santa Rosa County Animal Protection Officer, Ms. Betty Simms, from which sprang the charges concerning the dog named "Peaches". She and the Respondent were the only ones present in the examining room on the date in question. "Peaches" had been brought in by its owner to be shaved; and, because the dog had a propensity to bite, he was required to be sedated for the procedure. Tina Lyttle maintained that the Respondent dragged the dog into the room by its leash, slung it up on the examining table, and ran the leash down through the drain hole at one end of the table to hold the dog's head down close to the surface of the table, to restrain the dog. She contends that the Respondent told her to hold the dog's hindquarters and hold a vein so that he could inject the anesthesia. He kept missing the vein and tried in both back and front legs to locate a vein into which he could inject the anesthesia. Tina Lyttle contends that the dog began growling, and the Respondent became enraged and began striking the dog on the back-legs, hips and rib cage and snatched the dog by the hair and slung him off the table which resulted in the dog being hung by the neck with his head and muzzle on the table and his body suspended in the air. She maintains that the Respondent then struck the dog on the muzzle with his fist and that the dog became unconscious due to choking as a result of this alleged handling. She also states that the Respondent was silent during this alleged episode. She then contended that the Respondent and she had an argument about his treatment of the dog and that she "stormed" out of the clinic to the kennel area. The Respondent, a short while later, went out and discussed the matter with her and attempted to placate her and get her to come back and assist him further. She came back inside, saw that the dog was already anesthetized and unconscious and, ultimately, shaved the dog at the Respondent's instruction. She left work that day and missed work the next day. She came back two days later and inquired of the Respondent and staff members about the dog. She alleges that some days later, staff member, Pat Guinn informed her that the dog had died at the Respondent's facility. Pat Guinn claimed in her testimony, that she found the dog dead in his pen and that the Respondent instructed her to put him in a bag and that she delivered the body of the dog to the Respondent and Ms. Vetitoe, another client of the Respondent. She testified that the Respondent directed her to put the body of the dog in Ms. Vetitoe's truck, or else the Respondent put the dog in Ms. Vetitoe's truck, (her testimony is inconsistent here) for the purpose of Ms. Vetitoe removing the dog from the premises and burying it. The Respondent describes the incident involving "Peaches" in quite a different light. The Respondent acknowledges that the dog was there to be shaved and otherwise cared for at the request of its owner, Ms. Berrera. He and Tina Lyttle were holding the dog on the table, as described. That is, the dog's head was cinched down close to the table by placing the leash through the drain hole in the table. This is accepted, proper veterinary practice in order to help restrain the dog and prevent the dog from injuring the veterinarian or his staff. As the Respondent was attempting to locate a vein whereby he could inject the anesthesia, during which time Tina Lyttle was holding the dog's hindquarters, the dog became belligerent, growling and suddenly bit the Respondent on his left forearm. The bite was a severe one going all the way through the upper part of the Respondent's forearm. The Respondent was in extreme pain and bleeding and struck at the dog, attempting to get him to release his hold. The dog's jaws were locked on the Respondent's forearm and ultimately, the Respondent acknowledges that he had to pry the dog's jaws open with a screwdriver to get him to release, all of which caused the Respondent extreme pain and blood loss. During this episode, Tina Lyttle became angry at the Respondent, shouted at him and remonstrated with him for hitting the dog and stormed out of the clinic. Another staff member assisted the Respondent in sedating the dog and preparing him to be shaved. The Respondent proceeded even though he had to stop and render first aid for his wounded forearm. Later he went outside and attempted to calm Ms. Lyttle down and finally got her to go back to work, although during their discussion she assaulted him by throwing him against the kennel building in a rage. Although the Respondent testified unequivocally that the episode occurred in this manner and that, indeed, the dog had bitten all the way through his forearm, both witnesses for the Petitioner, Tina Lyttle and Pat Guinn, denied that the biting incident occurred. The Respondent's version of events is corroborated, however, by Lt. Loria of the U.S. Marine Corps., who was a client of the Respondent and had just brought his dog in for care. The Respondent had noticed Lt. Loria on the premises and asked him to come to the examining room so that he could show him what had occurred. Lt. Loria observed, immediately after the injury to the Respondent's forearm, the wound caused by the dog, who was still in the room. This observation was made with the Respondent spontaneously telling Lt. Loria in no uncertain terms about the manner in which the dog had bitten him. Lt. Loria observed the wound in the Respondent's forearm and indicated that a pencil or fountain pen could have been stuck through the fang wounds. Lt. Loria testified by deposition in this proceeding and corroborated the Respondent's version. The Respondent had a noticeable scar from the wound on his arm and demonstrated it at hearing. It was observable during the investigatory process as well. The circumstances surrounding the death of the dog, described by Tina Lyttle and Pat Guinn, are also disputed by the Respondent and Ms. Vetitoe. Tina Lyttle maintained that she was informed by staff member, Pat Guinn, several days after the incident, that the dog had died on the premises; and then Pat Guinn testified concerning the manner in which she alleged that the Respondent, herself and Ms. Vetitoe arranged for the burial of the dog. The Respondent describes this incident differently. The Respondent stated that on the day after the biting altercation with the dog, he went to the dog's cage and observed that he needed exercise and needed to get out to relieve himself. Consequently, he snapped a leash on the dog and lead him through the clinic to exercise him outdoors. As he neared the patient waiting room, the dog got the leash in his mouth and bit through it, thus, getting loose. As luck would have it, a patient came in the front door of the clinic just at that moment and the dog rushed outside before the Respondent could stop him and escaped off the premises. The Respondent rushed outside, went into the field adjacent to the clinic looking for the dog and called him, to no avail. He then returned to the clinic in order to get into his truck and ride around in the neighborhood in an attempt to apprehend the dog. He maintains that he then met Carla Fowler, another staff member, who was returning from lunch nearby, told her of the dog's escape and enlisted her help in looking for the dog, instructing her to get into her car and also ride around the area in an attempt to locate the dog. The Respondent was never successful in finding the dog and ultimately bought the owner another dog of the same type, color and description and replaced the animal at his own expense. The owner and her children were satisfied with this arrangement and made no complaint concerning the Respondent's treatment of the dog or the unfortunate loss of "Peaches" and his replacement with another dog. The testimony of Ms. Vetitoe corroborates this version of events related by the Respondent. Ms. Vetitoe, by Pat Guinn's own admission, was present when the alleged disposal arrangement, related by Pat Guinn, was made. Ms. Vetitoe owns some thirty-four (34) dogs herself. She has been a client of the Respondent for many years. She testified that on no occasion has she ever buried a dog. She is an ardent animal lover and when her dogs expire, she has them cremated and their remains placed in urns. She testified that it was absolutely untrue that the Respondent or Pat Guinn had requested her help or assisted her in disposing of the dog. Her testimony is unequivocal that that episode never occurred and that she had never seen the dog "Peaches" which Pat Guinn and Tina Lyttle alleged to have died on the premises. Finally, in this regard, the testimony of Carla Fowler also corroborates the Respondent's and Ms. Vetitoe's testimony regarding the events surrounding the dog's demise. Carla Fowler acknowledged that when she was returning from lunch nearby, she saw the Respondent running through the field adjacent to the clinic looking for the dog. When he came back to the vicinity of the clinic, he told her that he was looking for "Peaches" and that the dog had escaped. She stated that he enlisted her help in finding the dog. The Respondent's, Ms. Vetitoe's and Lt. Loria's versions of the events surrounding the care, treatment and death of the dog "Peaches" are accepted. The testimony of Tina Lyttle and Pat Guinn concerning this incident is rejected in its entirety as incredible for the reasons related above and which will be treated more definitively, infra. Paragraphs 15 through 24 of the Administrative Complaint, including, from paragraphs 19 through 24, Counts Four, Five and Six, relate to an alleged incident involving a dog named "Star", belonging to Wanda Bruner. The dog was brought to the Respondent's clinic for veterinary care apparently consisting of a general examination, a flea dip and bath. It is alleged in paragraphs 15 and 16 of the Complaint that on or about September 5, 1986, the Respondent intentionally, cruelly and repeatedly struck the dog "Star" with his hands and bit the dog and that he intentionally and cruelly struck the dog on the head with a hose nozzle. Carla Fowler was the employee who assisted the Respondent in examining and caring for "Star" on the dates in question. The Respondent had placed the dog on the examining table at the outset of the episode of September 5, 1986, apparently for purposes of examination. Carla Fowler relates that the dog was "real nervous" and "I don't know if it was jerking or something, and Dr. Monroe hit it on the head and then on the rib cage and the dog got even more nervous. And then Dr. Monroe stooped down and bit the dog on the nose. And then the dog urinated all over the table". Ms. Fowler then testified that the Respondent told her to remove the dog from the room or words to that effect and then told her the next day to bring the dog in so they could give it a bath. He asked her to assist him in giving the dog a bath because he was afraid the dog would put up fight, in her words. She testified that the dog was trying to squirm along the side of the tub and the Respondent, who had a water hose in his hand, hit the dog on top of the head with the water hose nozzle, broke the head open, causing bleeding. She became upset with the Respondent's action, according to her testimony, and also testified that her husband walked in the door when the incident happened. Although her husband testified that he observed the incident where the Respondent is alleged to have struck the dog on the head with the hose nozzle, it is found that that incident did not occur and that he was not in a position to have observed it. Photographs and the evidence, consisting of the Respondent's Exhibits 1 and 2, coupled with the Respondent's testimony, are accepted as more credible and establish that the Respondent and Ms. Fowler were standing between the door and the bathtub bathing the dog in such a position that anyone coming in the back door, such as Ms. Fowler's husband, would have been unable to observe the alleged incident. The testimony of Ms. Fowler and her husband, as well as that of Pat Guinn, (itself, internally inconsistent in that, in her deposition, she stated that she observed the "hose striking incident" and in her testimony at hearing, admitted that she had not observed it), is rejected as incredible and unworthy of belief. The testimony of the Respondent is accepted. In this regard, the Hearing Officer is mindful of the testimony of Wanda Bruner, "Star"'s owner, who established that, indeed, stitches were observed by her in the head of the dog and that the Respondent told her that he had removed a cyst and stitched up the small incision involved. The testimony of the Respondent concerning this incident, as corroborated or explained by the testimony of Wanda Bruner, is accepted; and it is found that no acts of cruelty were perpetrated by the Respondent against the dog named "Star". Paragraphs 25 through 28 of the Administrative Complaint concern the dog named "Chipper" owned by Lorraine Purcell. Ms. Purcell brought the dog to the Respondent on approximately April 18, 1986 for a checkup and general examination. The Respondent determined that the dog's anal glands were infected, and he recommended to Ms. Purcell that surgery be performed to remove the anal glands. Ms. Purcell agreed to this procedure, and the Respondent performed the surgery removing the anal glands and stitching up the incisions. Some two or three days later, Ms. Purcell telephoned the Respondent's office concerning the release of her dog and was informed that the dog had suffered complications attendant to his "bothering" or chewing the stitches and that the dog needed to remain a few more days. She agreed to this and contacted the Respondent's office at least once more concerning when she should retrieve her dog. The Respondent conversed with her directly on April 23, 1986 and told her that he had had to re-operate on the dog because the dog had chewed or bothered his stitches such that surgical repair of the resulting wound was necessary on the dog's left side, that is, the left side of the anal opening. Upon learning that the dog had a large open hole or wound on the left side of his anus, Ms. Purcell became upset with the Respondent, came to the office and removed the dog from his care against his recommendation and sometime shortly thereafter, took the dog to another veterinarian, Dr. Clinton Chew. Dr. Chew described the large, open wound on the left side of the dog's anus as involving damage to the sphincter muscle with the effect that the dog was unable to control its bowel movements, and therefore, was dripping feces uncontrollably. Dr. Chew was unable to determine if the wound was caused by the dog's self-mutilation of the earlier incision but stated that it could have been the result of self-mutilation. He did not know how long the dog was in its owner's care after it had been removed from the care of the Respondent before being brought to him, but felt that it was approximately a day. He ventured no opinion about whether any self-mutilation could have occurred after the dog was removed from the Respondent's care and before being brought to him. Dr. Chew advised Ms. Purcell that two courses of treatment were available; healing by granulation, that is, the natural healing process for closing up the hole as small as possible before surgery; or immediate surgical intervention to try to close the open wound. Upon his advice, Ms. Purcell elected to allow some time for the natural healing process to close up the hole as small as possible with a view toward trying surgery at a later time if that was still necessary. After leaving the dog in Dr. Chew's care for some days, with the healing process started, Ms. Purcell or her husband retrieved the dog from his care and brought the dog home. The dog suffered at home because he was incontinent and dripping fecal material, such that he became very bothered by flies and could not come into the house as he formerly had. Because the dog was miserable and Ms. Purcell and her husband felt that his quality of life had severely deteriorated and because they were constantly having to clean up after the dog, she and her husband decided to have the dog put to sleep. Mr. Purcell, therefore, brought the dog back to Dr. Chew and upon their own initiative, instructed Dr. Chew to have the dog put to sleep. Dr. Chew testified that that was not his recommendation and that the Purcells had not instructed him to try to effect further repair of the wound surgically. In fact, by June 26, 1986, when the dog was brought in to be put to sleep, the natural healing process had substantially closed the hole although the dog was still incontinent because of the destruction to the sphincter muscle. In any event, without attempting further repair surgically, the dog was put to sleep on or about that date. Neither Dr. Chew nor any other witness established what the appropriate, professional veterinary standard of care in this situation might be. In any event, Dr. Chew testified that the portion of the incision which was not damaged, that is, on the dog's right side, was properly done. He was thus unable to say that the surgery was improperly or incompetently done or that it was unnecessary, nor did any other witness. Paragraphs 29 through 34 of the Administrative Complaint concern an incident allegedly occurring on October 30, 1986 when the Respondent attempted emergency veterinary care for a dog named "Dusty" belonging to Mr. Gary Ethridge. Dusty was brought in earlier on the morning in question very ill, dehydrated and cold. Pat Guinn or others on the Respondent's staff called him at home and told him that the dog had been brought in, and he told them that he would come into the office "in a little while" to see about him. They did not tell him that the dog was an emergency case. When he finally arrived at his office around 9:45 a.m. or 10:00 a.m., he realized that it was an emergency case and that the dog was in serious condition. He then attempted to perform a transfusion and used his German short-haired pointer, "Shadow", as the donor dog. As he had both dogs lying on the table, attempting to use his transfusion equipment, he had his face close to Shadow's head. He told his own dog, Shadow, to be still or be quiet in a loud voice which startled the dog and the dog whirled around and bit the Respondent on the nose, severely lacerating his nose, causing it to bleed copiously. Pat Guinn was the attending staff member at this procedure. The Respondent had Pat Guinn hold something to his nose to staunch the blood flow while he continued to attempt to render care to the severely-ill Dusty. Ultimately, because he was in extreme pain and losing blood from the wound in his nose, he was unable to complete the procedure and instructed Pat Guinn to take Dusty to Dr. Andress, a nearby veterinarian, to secure his care while the Respondent went to the emergency room to have his wound treated. This procedure was followed, but unfortunately the dog expired shortly after arriving at Dr. Andress' office. Pat Guinn testified that the dog "Dusty" came into the office early on that morning very ill and very cold. At about 8:15 a.m. to 8:30 a.m., she called the Respondent and told him of the dog's arrival. She maintains that she told him that morning over the telephone that it was a grave emergency. In any event, she testified that she and Carla Fowler put the dog on the table and placed warm water bottles around him and covered him up, awaiting the Respondent's arrival. She testified that the Respondent did not get to the clinic until 10:30 a.m. and got mad at her when he saw the condition of the dog, saying that it was an emergency and that they should have called him. She claims to have reminded the Respondent that she had told him that it was an emergency when she called him early that morning, shortly after 8:00 a.m. In any event, she testified that the Respondent, in attempting to establish the transfusion, became agitated and bit his dog, "Shadow", on the ear, whereupon Shadow bit him on the nose. Pat Guinn is not worthy of belief. Ms. Vetitoe, a confirmed animal lover, observed the procedure being performed on "Dusty", with the dog "Shadow" as the donor dog, and observed what transpired when the Respondent was bitten on the nose by Shadow. She corroborated the Respondent's own testimony upon which the above Findings of Fact are based to the effect that Shadow bit him on the nose, but he never bit any dog. Pat Guinn was a disgruntled employee. She was fired in February of 1987 by the Respondent and shortly thereafter, executed the affidavit upon which this prosecution was, in part, based. She testified that the Respondent had held a gun on her and threatened her on three different occasions and threatened to kill her and her children. She maintains that she told the Deputy Sheriff, Officer DeLeon, of this when she called him to report these incidents, as he put it, "Just for the record". In fact, Officer DeLeon testified that she had never reported the Respondent threatening her with a gun, holding a gun on her or pointing a gun at her. She also acknowledged in her testimony and in a deposition that she had been treated for stress and for a "nervous breakdown". Even Carla Fowler, another witness for the Petitioner, acknowledged that Pat Guinn had been known to exaggerate the truth. I find Pat Guinn's testimony too inconsistent, false and influenced by her hostility toward the Respondent, due to her discharge and, doubtless, to other altercations with him, to justify accepting it as probative of any facts in dispute. Paragraphs 35 through 37 of the Administrative Complaint charge that the Respondent inflicted cruelty intentionally and repeatedly on a cat named "Leo," belonging to Judith Gahimer, which had been brought to the Respondent for veterinary care. The cat "Leo" suffered from a hematoma in one ear caused by an injury (blood blister). The Respondent performed a "zepp" procedure which involves slitting the hematoma area and inserting a stainless steel ring so that the ring can move and prevent the wound from closing up, thus, enabling it to drain properly while it is healing. This is an accepted procedure for this type of injury, as acknowledged by Dr. Cordell, the Petitioner's expert witness. In this particular animal, however, for some reason, the incision did not heal properly. This was possibly because the cat kept irritating the incision. In any event, the cat had to be brought back to the Respondent on a number of occasions for cleansing of the wound and otherwise caring for it. On one of these occasions, Tina Lyttle assisted the Respondent in caring for the cat. The cat was on the examining table, and Tina Lyttle was assisting in restraining the cat while the Respondent treated it. Tina Lyttle stated that the cat became irritated and growled and hissed at the Respondent. She testified that she then observed the Respondent hit the cat approximately three times on the head with his hemostats and no- where else on the cat's body. Judith Gahimer, the cat's owner, believed that the cat's hips had been injured because the cat walked with a limp at some point after the Respondent was through treating him and was unable to jump anymore. She believed the cat's hip to be fractured. It was not demonstrated, however, even by the testimony of Tina Lyttle; that any permanent injury to the cat occurred during the Respondent's care. In fact, in her own testimony, Tina Lyttle, herself, was holding the cat with her hands in the area of his hips and shoulders to restrain him on the examining table. Any permanent injury to the cat was not caused by the Respondent. The cat's owner was unable to offer any definitive explanation for how the cat may have been injured or when. The Respondent vehemently denies striking the cat, as described by Tina Lyttle. I accept the testimony of the Respondent over that of Tina Lyttle concerning the "Leo" complaint. Shortly after the "Peaches" incident, Tina Lyttle was discharged by the Respondent as a result of a verbal and physical altercation he had with her. The Respondent offered to rehire her if she apologized for her behavior. The totality of the evidence of record reveals, however, that she harbors a great deal of resentment against the Respondent. Her bias against him is definitely demonstrated by the fact, as established by other prosecution witnesses, that she was the person who orchestrated the gathering of complaint affidavits against the Respondent, contacting Betty Simms of the Santa Rosa County Humane Society (after the Escambia County Humane Society refused to pursue the matters involved in this Administrative Complaint) and was the prime movant in getting Ms. Simms and the Santa Rosa County Humane Society to institute both the criminal and administrative proceedings against the Respondent. Her testimony is not credible nor worthy of belief. Paragraphs 38, 39 and 40 of the Administrative Complaint concern a spaniel by the name of "Beau". These paragraphs, which include Count Eight of the Administrative Complaint, allege that the Respondent, on a date unknown, was observed striking and biting "Beau". The incident involving "Beau" purportedly involved the Respondent treating the dog by cleaning his ears. The Respondent's assistant at the time, Peggy Maggard, helped with this procedure. Ms. Maggard testified that she was holding the dog on the examining table while the Respondent was cleaning his ears, which were apparently rather sensitive. She testified that the dog tried to pull away when his ears were being examined and that the Respondent hit the dog on top of the head and then struck him on top of the head again with his fist. He became angry, according to Ms. Maggard, and jerked the dog away from her and bit the dog on the nose, severely enough to leave a gash, causing the gash to bleed. Ms. Maggard testified that at this point she grabbed the Respondent by the throat and admonished him not to treat the dog so. She claims that the bite by the Respondent to the dog's nose caused a gash in approximately the pattern of the Respondent's teeth, or approximately one and a quarter inches wide, causing the wound to bleed and that the blows to the top of the head left a noticeable lump on top of the head which a person examining the dog would be able to feel. She testified that the dog's owner would be able to readily notice both injuries. The dog's owner, Henry Savelle, had used the Respondent for "Beau"'s care and treatment for a number of years, always finding the care and treatment rendered to his dog to be appropriate. Mr. Savelle retrieved his dog from the Respondent's care approximately the next day following the purported incident. He noticed no injuries whatever to the dog. He would have been able to notice such injuries inasmuch as he is frequently in close contact with his dog. The alleged incident concerning the dog "Beau" is supposed to have occurred, according to Peggy Maggard, in 1983, approximately six years before this proceeding. Ms. Maggard did not report this incident until May 14, 1987, some four and one- half years after it occurred. She did not report it until she conferred with Betty Simms, the Santa Rosa County Humane Society member and Animal Control Officer and only did this after learning that others who had worked for the Respondent had made complaints to Ms. Simms. The witness testified that she could not recall how she learned that others had made complaints and purported not to recall whether she had talked to other complainants about the Respondent and the care and treatment he had rendered to the various animals involved in those complaints. It is singular to observe, however, that she was purportedly able to recall clearly all of the events surrounding the incident allegedly occurring with the dog "Beau," even though it allegedly occurred some four and one-half years earlier than the events she purportedly cannot recall concerning how she came to learn of the complaints against the Respondent, the investigation by Animal Control Officer Simms, why she came to make her report in May of 1987, nor whether she conferred with the other complainants before or after making her report concerning "Beau". She did state, however, that upon reporting the "Beau" incident to Betty Simms, the Animal Control Officer, she already knew that others had made complaints, meaning the other former employees of the Respondent. Peggy Maggard, like the other former employees of who made complaints which engendered this prosecution, had had disagreements and altercations with the Respondent which resulted in her being discharged twice from his employ. The Respondent, for unexplained reasons, as in the case of some of the other employees, rehired her after discharging her for the first time. In any event, it is apparent, from the totality of the circumstances concerning the manner in which Ms. Maggard described this alleged incident and the manner in which it came to the attention of the Petitioner through the reporting of it, much belatedly, by Ms. Maggard, after she learned of the efforts by former employees to report incidents concerning the Respondent, that Ms. Maggard harbors a significant amount of resentment against the Respondent. She is a disgruntled former employee. This leads the Hearing Officer to the conclusion, considering circumstances of her employment, history, the purported nature of the "Beau" incident, and the apparent contact that the various former employees, including Ms. Maggard, had with each other concerning the reporting of these incidents, and the manner of reporting them, that Ms. Maggard fabricated this incident It is simply incredible that the Respondent would have bitten the dog on the nose, and Ms. Maggard was certainly not a convincing witness capable of establishing that fact. Perhaps the Respondent said it best when he testified, without contradiction that, at the behest of the Department, he had taken a battery of psychiatric tests and had "passed with flying colors". It is singular to note in reviewing the totality of testimony and evidence in this proceeding that the Respondent is the only witness who was subjected to and passed such psychiatric examinations. The Respondent vehemently denied that this incident occurred. His testimony is credible and accepted. The incident did not occur. The "medical records complaint" concerns paragraphs 41 through 47 of the Administrative Complaint. In this regard, it is alleged that on or about July 23, 1987, the Respondent was contacted by the Petitioner, through its investigator, Mr. Clum, and requested to provide treatment records for the animals, "Peaches, "Chipper", "Babe" and "Geoff", pets he had allegedly treated. The Respondent was presented with a "authorization" to release the records of each of the above- named animals, and is charged with failing or refusing to release those records to the Department's investigator, Mr. Clum, in alleged violation of Rule 21X-18.02, Florida Administrative Code. Indeed, the Respondent did fail to give the investigator those records. In this connection, the record evidence reveals that Tina Lyttle, in approximately February of 1987, was working at the clinic on a Sunday when the Respondent was not present. This was after the point in time when Tina Lyttle had assembled the various affidavits from employees or former employees and reported the alleged incidents to Ms. Simms. On this Sunday occasion, Ms. Lyttle called Ms. Simms; and at her behest, Ms. Simms went to the Respondent's office to make observations, take photographs and to examine the Respondent's records, which Tina Lytt1e allowed her to do. The two examined the Respondent's medical records without the Respondent's or the pet owners' authorizations. They also photographed certain records. Thereafter, on July 23, 1987, when the Respondent was asked by investigator Clum to provide the records of the four above-named animals, the Respondent attempted to do so. He went to his file cabinet where such records are kept and could not find the records. In fact, the record jackets concerning each of these animals were still in his file drawer; but the record materials contained therein were missing. The failure to supply these records to the Department's investigator was not shown to be the fault of the Respondent. He did not fail or refuse to provide the requested records. He tried to provide them. It was simply impossible because they had been removed from his files. Paragraphs 44 through 47 of the Administrative Complaint concern treatment records which the Respondent did provide at the Petitioner's request for the animals named "Leo", "Max", "Beau", and an unnamed mixed collie owned by Kimberly Rowe. It is charged in essence that the records furnished by the Respondent as to these animals failed to contain all of the information required by Rule 21X-18.02, Florida Administrative Code. During the course of the hearing, the Petitioner voluntarily dismissed the complaint as to the dog named "Max" and the unnamed mixed collie, leaving at issue the question of the adequacy of the records concerning the cat named "Leo" and the dog named "Beau". The Petitioner presented, as its expert witness in the field of veterinary medicine and practice, Dr. Joe Wilson Cordell, Jr. of Tallahassee, Florida. Dr. Cordell has been a veterinarian for some 17 years and was accepted as an expert in the practice of veterinary medicine. Dr. Cordell reviewed the medical records on the two named animals consisting of the Petitioner's Exhibits 84 and 85. With regard to the records concerning these two animals, Dr. Cordell did not opine that the treatment or care furnished was inadequate or did not accord with appropriate, professional veterinary medicine standards. He did observe that to some extent the records were incomplete in showing exactly what surgical procedure or other procedure might have been done, whether or not physical examinations were performed, prior to administering anesthetic, what type of anesthetic was used and the route of administration. Certain items, such as body temperature, physical examination findings, medications used, route of administration of the medications, and adequate descriptions of procedures involved were lacking from the records or, to some extent, were illegible. The ear procedure record concerning the dog "Beau," for June 23, 1983, does not contain a diagnosis. Dr. Cordell established that a diagnosis is required for such a medical record. In summary, Dr. Cordell could not tell from examining the records exactly what procedure was done regarding the ear treatment involved as to one of the animals nor were adequate record entries made regarding the results of physical examinations. He acknowledged, however, that the records probably meant a great deal more to the Respondent than they did to him inasmuch as he was unaware of the Respondent's manner of making notes. He observed that the Respondent's notes probably meant more to him than they would to anyone who examined them. Such medical records and notes are for the purpose of assuring continuity of treatment and to refresh the doctor's recollection of the status and condition of an animal which he may been treating and keeping records on for a number of years. The Respondent testified that he felt that he was making records in the manner taught at the veterinary school at Auburn where he was trained and at which his brother, who advised him concerning record-keeping, is a professor. Further, the Respondent, in an effort to improve his record keeping, prior to this prosecution, installed a $23,000.00 computer hardware and software system to help him to assure better and more adequate record-keeping. The observations of Dr. Cordell concerning the record-keeping as to the animals named "Leo" and "Beau" are accepted to the extent that they demonstrate the inadequacies in recording the observations, results of examinations, treatment details and diagnoses related to those two animals. Neither Dr. Cordell nor any other witness established, however, what the professional veterinary medicine practice standards are as to any illnesses or conditions presented and resulting treatment performed as to any of the animals referenced in the Administrative Complaint. There has been no demonstration that any care and treatment performed by the Respondent has failed to accord with any professional veterinary medicine practice standards. Thus, as to any of the animals referenced in the Administrative Complaint, there has been no showing of incompetency or misconduct in the practice of veterinary medicine nor has there been any demonstration of fraud, deceit or negligence in the practice of veterinary medicine. Concerning the so-called "General Complaint" appearing at paragraph 48 of the Administrative Complaint, the Respondent is charged with practicing veterinary medicine in a way that inflicted unnecessary pain and suffering on animals entrusted to his care and treatment which, in turn, is alleged to be misconduct in the practice of veterinary medicine, as well as being beneath the minimal standard of care required of veterinarians in the State of Florida. Once again, it is found that no minimal standard of care required of veterinarians in Florida has been established of record in this proceeding. In accordance with the above Findings of Fact, it has not been established that any unnecessary pain and suffering was inflicted on any of the animals entrusted to the Respondent's care and treatment. Finally, it is true that the Respondent entered a plea of nolo contendere to two counts of the offense of cruelty to animals, as shown by the Petitioner's Exhibit 83, the order of the circuit judge entered on July 6, 1987. The Respondent established, however, that after paying a $15,000.00 fee to his attorney, Leo Thomas, in that criminal proceeding, and vehemently insisting on a jury trial because he felt that he had not committed any misconduct, he bowed to the advice of Attorney Thomas to the effect that if he proceeded with litigating the criminal matter, it would ruin his veterinary practice due to adverse publicity. Consequently, the Respondent established that that plea was merely "a plea of convenience" and was not made because the Respondent felt or tacitly admitted any guilt of the charges involved. In fact, the circuit judge did not adjudicate him guilty and stated affirmatively in his order that he did not feel that the alleged course of conduct involved required that he should be adjudged guilty. That order does not establish any conviction or adjudication of guilt but rather, was a result of a "plea of convenience". In summary, none of the violations alleged in the Administrative Complaint, other than the minor record keeping violations established by Dr. Cordell, have been proven in this proceeding. In reading the conflicting testimony, the Respondent's testimony and that of Ms. Vetitoe and Lt. Loria is accepted over that of the Petitioner's complaining witnesses because they are more credible and worthy of belief. The testimony of most of the Petitioner's witnesses, consisting of the former employees of the Respondent, is tainted and colored by bias and resentment against the Respondent, caused by past disagreements between him and those witnesses which, in the instance of each of them, culminated in their discharge from his employ, in some cases, multiple times. Tina Lyttle, for instance, had a number of verbal and physical altercations with the Respondent, at one point, in connection with the "Peaches incident", slamming the Respondent against the wall of the kennel or outdoor building when he went outside to attempt to calm her down from her misplaced anger resulting from the "Peaches incident". It was Tina Lyttle who conferred with the other complaining witnesses, orchestrated the complaints and secured the affidavits as to the alleged instances of animal cruelty and the infliction of unnecessary pain and suffering which, were given over to Ms. Simms, the Animal Control Officer, who then proceeded to instigate both the criminal prosecution and this administrative prosecution. There is sufficient evidence of record to infer that these witnesses, who had worked for the Respondent, conferred with each other at various times in orchestrating their complaints against the Respondent, and that each of them had sufficient grounds for bias and resentment against the Respondent as disgruntled employees so as to support a finding and conclusion that these former employees fabricated the essential specifics of the story of the Respondent's alleged cruelty and improper treatment of the animals in question. This finding is supported in this record by the inconsistencies in the testimony, at various times, of some of these witnesses. Pat Guinn, for instance, in her deposition, taken prior to this proceeding, indicated that she observed the Respondent strike the dog "Star" on the head with the hose nozzle. In her testimony at hearing, she recanted and stated that she had not seen that incident. Her testimony is also inconsistent about the manner in which "Peaches" death was reported and the manner in which the dog's body was allegedly disposed of. Her testimony is simply incredible in the face of the testimony of Ms. Vetitoe, an avowed animal lover, who testified that she never buries a dog but rather, cremates all of the dogs she has ever had to die in her custody, placing the remains in urns. Her testimony concerning the Respondent threatening her with a gun on three different occasions was belied by that of Officer DeLeon, who certainly had no motive for fabrication of his testimony when he indicated that no report of her being threatened with a gun was ever made to him. He testified that she reported an alleged threat against her by the Respondent, "Just for the record". In his experience as a law enforcement officer, he testified that it is highly unusual for an employee to report such an altercation with her employer, "Just for the record". The testimony of Carla Fowler is inconsistent with that of Guinn and Lyttle concerning the question of Peaches death or disappearance. Like the other witnesses, it is found to have been guided by her resentment against the Respondent more than any righteous indignation and genuine concern for the animals in question, as evidenced by the fact, established by Ms. Vetitoe's testimony that she, herself, had had a verbal altercation with Carla Fowler. When Ms. Vetitoe brought her own dog to be cared for by Carla Fowler, she warned Ms. Fowler that the dog had a propensity bite. Ms. Fowler, supposedly an animal lover herself, responded to Ms. Vetitoe by saying that if the dog bit her, she would "knock the m f hell out of the dog", a remark and attitude which upset Ms. Vetitoe, a dog fancier and client of long standing. In summary, the testimony of these former employee witnesses is fraught with internal inconsistencies and inconsistencies with the testimony of each other. Their testimony is simply not credible and worthy of belief and is found to have been fabricated with regard to the essential details concerning alleged cruelty to the animals in question. The testimony of witness Gahimer, the owner of the cat "Leo" is rejected. She did not establish that the alleged hip injury to the cat, if it occurred, was caused by the Respondent. The testimony of Tina Lyttle herself shows that no injury to the cat's hip area could have occurred during that treatment episode. The Respondent established that the Gahimer complaint was motivated by a billing dispute with the Respondent. No other pet owner had any complaints.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the pleadings and arguments of the parties, and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that a Final Order be entered by the Board of Veterinary Medicine dismissing the entire Administrative Complaint, with the exception of the charges in paragraphs 44 and 45 concerning the records of the cat "Leo" and the dog "Beau", and that it find that the Respondent has violated Section 474.214(1)(f), Florida Statutes, derivatively, by violating Rule 21X-18.02, Florida Administrative Code, concerning those two animals. Because of the circumstances surrounding this violation, as delineated above, it is recommended that a private reprimand be accorded the Respondent for this violation. DONE and ENTERED this 1st day of December, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 December, 1989.
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 The issue for determination is whether Respondent, a licensed veterinarian, committed a violation of Section 474.214(1), Florida Statutes, as alleged in the Administrative Complaint, and, if so, what disciplinary sanctions should be imposed against his license.
Findings Of Fact Respondent is William R. Dudley, a licensed veterinarian at all times pertinent to these proceedings, holding license number VM 0000626. Respondent's last known address is 613 Westwood Drive, Milton, Florida 32570. Petitioner is the state agency charged with regulating the practice of veterinary medicine pursuant to Section 20.165, Florida Statutes; Section 455, Florida Statutes; and Section 474, Florida Statutes. On or about January 5, 1998, Respondent performed declaw surgery on Aladdin, a Chocolate Point Siamese cat owned by Kim Hawkins. The surgery was performed on a fold-down table attached to the back of Respondent’s pickup truck. The truck was outfitted as an agricultural veterinary vehicle. Respondent administered a mixture of Ketaset and Acepromazine to the cat prior to surgery. No other medication was administered to the animal for purpose of either analgesia or anesthesia. The Ketaset and Acepromazine administered to the cat are both controlled substances. These drugs are not anesthetics and served only to immobilize the cat during the operation. After the surgery, Kim Hawkins took the cat home. The animal’s paws continued to bleed. On January 7, 1998, the cat was examined by another veterinarian, Dr. Yehia Ibrahim, who wanted to know “who had butchered the cat.” In a declaw procedure, the animal is first anesthetized and the cat’s claw and the third phalanx of each toe are removed. Each toe has three phalanxes and a claw. While the procedure performed by Respondent involved only the animal’s front paws, Respondent did not remove all of the third phalanx on several of the animal’s toes, and removed the third and part or all of the second phalanx on the animal’s other toes. Respondent removed part of the digital pad on most, if not all, of the toes on both of the cat’s front claws. As established by the evidence at final hearing, Respondent performed the declaw surgery in a negligent manner. Respondent did not make or retain any medical record of the declaw procedure performed on the Hawkins’ cat. Respondent did not have a premise permit for his house or a mobile clinic. Respondent also did not have a record which related to the storing, labeling, or administering of the controlled substances that he utilized during the declaw procedure on the Hawkins’ cat.
Recommendation Based on the foregoing and in accordance with Petitioner's penalty guidelines, it is hereby RECOMMENDED that a Final Order be entered finding Respondent guilty of the violations alleged in Counts II, III, IV, and V of the Administrative Complaint; imposing an administrative fine of $1000; and placing Respondent on probation for one year upon reasonable terms and conditions to be established by the Board of Veterinary Medicine. DONE AND ENTERED this 24th day of March, 1999, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings This 24th day of March, 1999. COPIES FURNISHED: Paul F. Kirsch, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 William R. Dudley, Jr., D.V.M. 613 Westwood Drive Milton, Florida 32570 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 John Currie, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent committed the offenses set forth in the administrative complaint and, if so, what disciplinary action should be taken.
Findings Of Fact Respondent is, and has been at all times material hereto, a licensed veterinarian in the State of Florida, having been duly issued license number VM 0002694. In April of 1988 Respondent practiced veterinary medicine from an establishment located in Dade County, Florida, that had not been licensed by Petitioner. Upon receiving a notice of violation, Respondent executed a cease and desist agreement, which he did not violate. Within thirty days of the notice of violation an application for licensure of the establishment was filed with Petitioner. Accompanying the application was a check which included the amount of the application fee and the amount of the late payment. On or about April 22, 1988, Respondent performed surgery on Yahara, a female dog owned by Arcadio Rolon. The purpose of the surgery was to spay Yahara. On or about April 25, 1988, Respondent informed Arcadio Rolon that Yahara had died on April 22, 1988. On April 27, 1988, Arcadio Rolon took the carcass of Yahara to Dr. David T. Wise, Jr., D.V.M., to have an autopsy performed. The autopsy revealed that the dog had recently been spayed. One ligature adjacent to the right ovarian string and artery had been partially attached to fat and was partially free floating. Another ligature was attached to fat mesentery in the caudal abdomen adjacent to the uterine strings and artery. Several sutures had been attached primarily to fat. There was a great deal of clotted blood in the abdominal cavity. The cause of Yahara's death was internal hemorrhaging, followed by shock and eventual death. The internal hemorrhaging was caused by Respondent's failure to properly tie off the severed ovarian and uterine arteries during the spay procedure. Yahara was a healthy dog before the spay procedure. The spay procedure on Yahara was not performed properly by Respondent in view of the standard of care exercised in the practice of veterinary medicine in the State of Florida There was no direct evidence that the premises utilized by Respondent in the practice of veterinary medicine were maintained in an unsanitary condition. The inspection reports were the only evidence that the premises had been kept in an unsanitary condition. These inspection reports were compiled by persons who were not witnesses at the hearing. None of Petitioner's witnesses had observed the premises before the Administrative Complaint was filed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Department of Professional Regulation, Board of Veterinary Medicine, enter a final order which finds Respondent guilty of violating the provisions of Section 474.215, Florida Statutes, as alleged in Count I of the Administrative Complaint, which finds Respondent guilty of violating the provisions of Section 474.214(1)(o), Florida Statutes, as alleged in Count II of the Administrative Complaint, which finds Respondent not guilty of having violated the provisions of Section 474.214(1)(d), Florida Statutes, as alleged in Count III of the Administrative Complaint, and which further finds Respondent not guilty of having violated the provisions of Section 474.214(1)(v), Florida Statutes, as alleged-in Count IV of the Administrative Complaint. For his violation of Section 474.214(1)(o), Florida Statutes, it is recommended that Respondent's license to practice veterinary medicine in the State of Florida be suspended for a period of ten days, that Respondent's license be thereafter placed on probation for one year, and that an administrative fine in the sum of $1,000.00 be imposed against Respondent. It is further recommended that there be no additional penalty imposed for Respondent's violation of Section 474.215, Florida Statutes, because of the action taken by Respondent following the notice of violation. DONE AND ENTERED this 31st day of August, 1989, 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 31st day of August, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-642 The proposed findings of fact submitted on behalf of Petitioner are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 2. The proposed findings relating to the inspection reports are rejected because the contents of the inspection reports are hearsay. Addressed in paragraph 3. Addressed in paragraph 4. Rejected as being unnecessary to the results reached. Addressed in paragraph 9. The proposed findings of subparagraphs A., B., C., and E. are rejected as being speculative and as being unsupported by competent, substantial evidence. The proposed findings of subparagraph D. are addressed in paragraph 7 and are subordinate to the findings reached in paragraph 9. The proposed findings of subparagraph F. are rejected because Petitioner failed to establish that the medical record introduced as Petitioner's exhibit 1 constituted all the records kept by Respondent on this matter. Addressed in paragraphs 5 and 6. Addressed in paragraphs 7 and 8. Rejected as being based only on hearsay evidence. Rejected as not being a finding of fact. The proposed findings of fact submitted on behalf of Respondent are addressed as follows: 1. Addressed in paragraph 1. 2-4. Addressed in paragraph 2. Rejected as being irrelevant and unnecessary to the conclusions reached. Rejected as being recitation of testimony. 7-9. Rejected as being conclusions of law and as being unnecessary to the results reached. 10. Rejected as being unnecessary to the results reached. 11-14. Rejected. Dr. Wise's report identified the dog upon which Dr. Wise performed the autopsy as being the dog Mr. Rolon brought to him. 15-16. Rejected as being unnecessary to the results reached. 17-20. Rejected as being unnecessary to the results reached. 21-22. Rejected as being contrary to the evidence. Rejected as being unnecessary to the results reached. Addressed in paragraph 2. Addressed in paragraph 10. COPIES FURNISHED: Laura P. Gaffney, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Juan C. Elso, Esquire 1331 Southwest 85th Court Miami, Florida 33144 Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Linda Biedermann, Executive Director Department of Professional Regulation Board of Veterinary Medicine 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 ================================================================= AGENCY AMENDED FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF VETERINARY MEDICINE DEPARTMENT OF PROFESSIONAL REGULATION, Petitioner, vs DPR CASE NUMBER: VM 0098214 DOAH CASE NUMBER: 89-0642 SALVADOR ALDEREGUIA, D.V.M., LICENSE NUMBER: VM 0002694 Respondent. /
Findings Of Fact Respondent, Marianne T. Keim, is a licensed veterinarian in the State of Florida, holding license number VM 0005113 (Veterinarian). Respondent's license to practice veterinary medicine is currently under probation and emergency suspension. At all material times, Respondent practiced veterinary medicine in Tampa, Florida. Findings As To Count I Of The Administrative Complaint On August 18, 1994, the Board of Veterinary Medicine entered a Final Order in settlement of five (5) different cases involving allegations against the Respondent. The Final Order adopted a Stipulation of the parties, and was filed with DBPR on August 22, 1995. The Final Order resulted in the placing of Respondent's license to practice veterinary medicine on probation for a period of five (5) years. The Final Order imposed certain conditions on the Respondent's practice of veterinary medicine, and also imposed an administrative fine on Respondent in the amount of $3,000, payable within 180 days from the date the final order was rendered by the Board. The Final Order provides in pertinent part: The Respondent shall, in the future, comply with Chapters 455 and 474, Florida Statutes, and the rules promulgated pursuant thereto. The Respondent shall be placed on probation for five (5) years. The terms of the Respondent's probation are: Compliance with all requirements of this Final Order. Practice veterinary medicine with direct supervision by a Florida licensed veterinarian for not less than forty (40) hours per month. All other practice of veterinary medicine shall be with indirect supervision by a Florida licensed veterinarian. Personally appear before the Board of Veterinary Medicine at the first meeting after probation commences, semiannually, at the last meeting before probation terminates and at such other times as may be requested by the Board. The Respondent shall be notified by the Board staff of the date, time, and place of the Board meeting whereat Respondent's appearance is required. Failure of Respondent to appear as requested or directed shall be considered a violation of the terms of this Order, and shall subject the Respondent to disciplinary action. The direct and indirect supervisor shall be approved by the Board and shall review all aspects of the Respondent's practice of veterinary medicine. In the event the Respondent desires to change monitors, the Respondent shall notify the Board at least ten (10) days prior to the last date that the former monitor will be available. The Respondent shall allow the monitors access to Respondent's patient records, calendar, patient logs, or other documents necessary for the monitor to supervise the Respondent as detailed below. The responsibilities of the indirect monitoring veterinarian shall include the following: Review 25 percent of Respondent's active patient records at least once a month at the Respondent's office for the purposes of ascertain- ing the appropriateness of the Respondent's treat- ment, medication management, and the thoroughness with which her records are kept. The monitor shall go to Respondent's office once every month and shall review Respondent's calendar or patient log and shall select the records to be reviewed. Submit reports to the Board on a quarterly basis, in affidavit form, at least twenty-eight (28) days prior to each applicable Board meeting and each of which shall include: A description of Respondent's practice (type and composition). A statement addressing Respondent's com- pliance with the terms of probation. A brief description of the monitor's relationship with the Respondent. A statement advising the Board of any problems which have arisen. A summary of the dates the monitor went to the Respondent's office, the number of records reviewed, and the overall quality of the records reviewed. Any other reporting requirements. Maintain contact with the Respondent on a frequency of at least once per month. In the event that the monitor is not timely contacted by the Respondent, then the monitor shall report this fact in writing to the Board. The Respondent's monitor shall appear before the Board at the first meeting following commencement of the probation and at such other times as directed by the Board. It shall be Respondent's responsibility to ensure the appearance of her monitor to appear as requested or directed. Failure of the monitor, with- out good cause shown, to appear as requested or directed shall constitute a violation of the terms of this Order and shall subject the Respondent to disciplinary action. The responsibilities of the direct monitoring veterinarian shall include the following: Submit reports to the Board on a quarterly basis, in affidavit form, at least twenty-eight days prior to each applicable Board meeting and each of which shall include: A description of Respondent's practice (type and composition). A statement addressing Respondent's compliance with the terms of probation. A brief description of the monitor's relationship with the Respondent. A statement advising the Board of any problems which have arisen. A summary of the dates the monitor went to the Respondent's office, the number of records reviewed, and the overall quality of the records reviewed. Any other reporting requirements. The Respondent's monitor shall appear before the Board at the first meeting following commencement of the probation and at such other times as directed by the Board. It shall be Respondent's responsibility to ensure the appearance of her monitor to appear as requested or directed. Failure of the monitor, with- out good cause shown, to appear as requested or directed shall constitute a violation of the terms of this Order and shall subject the Respondent to disciplinary action. The Respondent shall obtain a second opinion, by a licensed veterinarian approved by the Board with respect to surgeries, excluding normal or routine spays, neuters, croppings and treatment of abscesses. The Respondent shall pay an Administrative Fine of three thousand dollars ($3,000). As Respondent has filed for protection in the United States Bankruptcy Court and has filed a plan of reorganization with said Court, the Respondent shall be allowed one hundred eighty (180) days from the rendition of the Final Order by the Board of Veterinary Medicine, to pay the fine. The fine shall be paid by the Respondent to the Executive Director of the Board of Veterinary Medicine, 1940 North Monroe Street, Tallahassee, Florida, 32399-0750. This time period may be extended by the Board for good cause shown. Any request for extension shall be submitted, in writing, to the Executive Director prior to the expiration of the 180 day time limit, at the address above. Pursuant to the Final Order, on October 19, 1994, Respondent made a required probationary appearance at the Board meeting in Orlando, Florida. When the meeting commenced, Respondent did not appear with her direct or indirect monitor, and the Board found Respondent in violation of the Final Order in that Respondent had not met the terms and conditions of her probation by failing to have her direct and indirect monitor appear for approval at the Board meeting. Respondent had sufficient time to locate a direct or indirect monitor, or to request an extension of time from the Board. At the October 19, 1994 Board meeting, Respondent represented to the Board that she had experienced difficulty in locating qualified, licensed veterinarians willing to accept the responsibilities of serving as her direct and indirect monitors as required by the Final Order. Prior to the conclusion of the Board meeting of October 19, 1994, Dr. Carlos Piniero, a veterinarian licensed in the State of Florida, and practicing in Hillsborough County, appeared and stated his willingness to serve as Respondent's indirect monitor. Respondent further indicated to the Board that she had obtained the consent of Dr. Robert Adey, a veterinarian licensed in the State of Florida, practicing in Winter Haven, Florida, to serve as her direct monitor. Pursuant to the Board's determination that Respondent had violated the terms and conditions of her probation, Respondent was instructed to discontinue her practice of veterinary medicine pending the Board's approval of her direct and indirect monitor as required by the Final Order. The Chairman of the Board, Dr. Bernard Myers, was given the authority to grant temporary approval for Respondent's direct and indirect monitors until the next meeting of the Board. On October 25, 1994, Dr. Robert Adey was temporarily approved by the Board chairman as Respondent's direct monitor, and Dr. Carlos Piniero was temporarily approved by the Board chairman as Respondent's indirect monitor. By letters dated December 22, 24, and 25, 1994, Respondent wrote individually to the seven members of the Board, Dr. Robert E. O'Neil, Dr. Carlos R. Pereira, Dr. Bernard Myers, Dr. Teresa L. Lightfoot, and Dr. Thomas F. Whitley, Ms. Cynthia Lewis, and Mr. Lewis Jennings, informing each individual member of her attempts to comply with the Final Order, as well as her difficulties in complying with the requirements of the direct monitor relationship. In these letters to the individual Board members, Respondent requested a reduction in her direct monitoring requirement from forty (40) hours per month to twenty (20) hours per month. At the next Board meeting on January 4, 1995, Respondent appeared with counsel, and with her direct and indirect monitors. After inquiring of the monitors and Respondent, the full Board confirmed the approval of Dr. Adey and Dr. Piniero to serve as Respondent's direct and indirect monitors, respectively. The Board did not consider, nor did the Board approve a reduction of the required forty (40) hours per month of direct monitoring of Respondent's practice of veterinary medicine by Dr. Adey. Respondent began her direct monitor relationship with Dr. Adey on October 20, 1994. As agreed to by her direct monitor, Respondent was required to attend Dr. Adey's clinic in Winter Haven, Florida, on each Thursday. From the onset, Respondent experienced difficulty in complying with the terms and conditions of the Final Order with respect to her relationship with her direct monitor, Dr. Adey. Because Dr. Adey practiced in Winter Haven, Respondent was required to travel approximately two hours each way from her office in Tampa, Florida, to Dr. Adey's clinic. Additionally, Dr. Adey restricted Respondent's activities in his clinic and, as a general rule, only allowed Respondent to observe his own practice. Dr. Adey expressed reservations regarding Respondent's abilities as a veterinarian, and accordingly, did not allow Respondent to practice veterinary medicine in his clinic except in very routine cases, and then only under his own observation and supervision, or the supervision of experienced members of his clinic staff. On one occasion, Dr. Adey gave Respondent an assignment on liver disease to complete at her own clinic. Respondent would also on occasion consult by telephone with Dr. Adey; however, Dr. Adey did not at any time monitor Respondent's practice of veterinary medicine at Respondent's Tampa clinic. According to Dr. Adey's records, Respondent was in attendance at Dr. Adey's clinic for approximately 15 hours in October of 1994, for approximately 28 hours in November of 1994, for approximately 32 hours in December of 1994, and for approximately 32 hours in January of 1995. Respondent's travel time, assignment time, or telephone consultation time are not included in the computation of these hours. From October 20, 1994 through the end of January 1995, Respondent missed three of her scheduled days for attendance at Dr. Adey's clinic. Two of the days were cancelled by Dr. Adey, and one day was cancelled by Respondent due to a meeting with her attorney. On January 27, 1995, Dr. Adey wrote a letter to Diane Gossett, an investigator with DBPR, stating that his direct monitor relationship with Respondent was unsatisfactory, and that under the circumstances, he was not able to attain the quality of direct monitoring of Respondent's practice of veterinary medicine that the Final Order of the Board required. On February 8, 1995, Dr. Adey wrote another letter to Diane Gossett expressing his continuing frustration with the direct monitor relationship with the Respondent, and tendering his resignation as direct monitor within ten (10) days. Dr. Adey subsequently agreed to remain as Respondent's direct monitor until March 12, 1995. On March 3, 1995, Respondent wrote to Susie Love, Program Administrator with the Board, expressing dissatisfaction with the inflexibility of the monitor situation, and requesting modifications of the Board's requirements in this regard. Respondent was informed by Susie Love by letter dated March 6, 1995, that approval of a direct monitor to replace Dr. Adey would have to be approved at the next Board meeting by the full Board. No action was taken by the Board with respect to the approval of a new direct monitor prior to the initiation of the emergency suspension proceedings against Respondent's license. The nature of the direct monitoring relationship established by Respondent with Dr. Adey did not satisfy the requirements imposed by the Final Order, in that Respondent did not practice veterinary medicine under the direct monitoring of Dr. Adey, but only was in attendance, and observed Dr. Adey's practice in Winter Haven one day a week. Respondent's indirect monitor, Dr. Carlos Piniero reviewed at least 25 percent of Respondent's records on a regular basis, consulted with Respondent as to her organization and record-keeping, and in this respect, Respondent was in compliance with the Final Order of the Board. Respondent has not paid the $3,000 fine assessed by the Board which was due 180 days from entry of the Final Order. Payment of the fine is overdue. By letter addressed to Susan Foster, Executive Director of the Board, dated December 5, 1994, Respondent requested an extension of time to pay the $3,000 fine. The letter was notarized by Thurston R. Smith also on December 5, 1994. Thurston Smith is a part-time employee of Respondent. The heading of the letter contains the correct business address of Susan Foster at 1940 North Monroe Street, Tallahassee, Florida, 32399. Respondent did not personally mail or fax the letter to Susan Foster, or request a return receipt. Dr. Lawrie Glickman, a friend of Respondent's testified that he believed the letter was among several items of mail he posted for Respondent. Thurston Smith testified that he believed the letter was among several items he faxed to DBPR for Respondent. Susan Foster did not receive the December 5, 1994, letter from Respondent by mail or by fax. DBPR has established normal and acceptable business procedures for processing incoming correspondence. In accordance with DBPR's normal business procedures, mailed or faxed letters addressed to the Board's Executive Director, Susan Foster, would routinely be opened and delivered to her office. Ms. Foster was personally familiar with Respondent, and also with the Board's actions relating to Respondent. Ms. Foster had received correspondence from Respondent on several other occasions, and had also received telephone calls from Respondent on several occasions. Any communication received by Ms. Foster from Respondent requesting an extension of time to pay a fine would, in the normal course of DBPR's procedures, have been brought to the Board's attention by Ms. Foster. A second handwritten letter from Respondent dated December 19, 1994, addressed to Susan Foster at the DBPR office in Tallahassee, also requested an extension of time to pay the $3,000 fine. The handwritten letter states that this is Respondent's second request for extension of time. Dr. Glickman testified he mailed and faxed this letter. Susan Foster did not receive the second letter. Respondent did not personally inquire of Susan Foster as to the status of Respondent's request for extension of time, nor did Respondent request that Ms. Foster place this matter on the agenda of the Board's next meeting on January 4, 1995. Respondent appeared, with counsel, at the next Board meeting on January 4, 1995; however, neither Respondent nor her counsel raised the issue of an extension of time in which to pay the fine with the Board. The Board did not consider, or approve an extension of time for Respondent to pay the $3,000 fine imposed by the Final Order. Respondent has not complied with the terms and conditions of the Final Order entered by the Board. Respondent did not satisfy the forty (40) fours per month of required direct monitoring of her practice of veterinary medicine. Respondent did not pay the $3,000 fine imposed by the Board within 180 days as required by the Final Order. Respondent's efforts in this regard do not constitute substantial compliance with a lawful order of the Board. Findings As To Counts II And III Of The Administrative Complaint On or about October 25, 1994, Mrs. Amy Armstrong inquired of Respondent as to performing a declaw procedure (also known as an onychectomy) on Mrs. Armstrong's six-month old English Springer Spaniel, Tilly. Mrs. Armstrong was concerned because her dog was digging in the yard, and scratching inside the house. Mrs. Armstrong was also concerned that her dog's digging and scratching would upset her landlord, and that she would be financially responsible for the damages caused by the dog. Mrs. Armstrong had initially contacted Respondent because Respondent's clinic advertised low-cost rates, and Mrs. Armstrong had been satisfied with Respondent's spay and neuter procedures previously performed on Mrs. Armstrong's cat and another dog. Mrs. Armstrong again called Respondent's clinic in mid-November 1994, and spoke with Daryl Dunnisch a member of Respondent's clinic staff regarding the declawing procedure. In late December of 1994, Mrs. Armstrong called again and Respondent personally discussed the declawing procedure with her. Respondent informed Mrs. Armstrong that the procedure required the dog to be anesthetized, but that the procedure should not be complicated for a young dog, that the recovery period would be a few days during which the dog would be sedated, and that the procedure should solve the digging and scratching problems Mrs. Armstrong was experiencing. Respondent also offered Mrs. Armstrong the alternative of filing down the dog's nails. Respondent's records reflect that Mrs. Armstrong was forewarned of the severe pain the dog would experience, as well as the lengthy recovery period. Respondent quoted Mrs. Armstrong a price of $65.00 for the declawing procedure. Mrs. Armstrong did not represent to Respondent or to a member of Respondent's office staff that she would euthanize the dog unless the declawing procedure were performed, but stated that she would need to consider other options about keeping the dog. As to this issue, the testimony of Mrs. Armstrong is deemed more credible. In regard to the declawing of her dog, Mrs. Armstrong also contacted another veterinarian, Dr. Robert Titus, at the Kingsway Animal Clinic, Brandon, Florida, to whom Mrs. Armstrong had, on occasion, previously taken her pets. Mrs. Armstrong inquired of the cost of the declawing procedure. Dr. Titus does not perform declawing procedures on healthy dogs, and told his staff to quote Mrs. Armstrong a price in excess of $285 to discourage her from seeking the procedure. After considering the price quoted by Respondent, Mrs. Armstrong made an appointment with Respondent to perform the declawing procedure on January 12, 1995. A declawing procedure on a healthy dog is not a normal or routine surgical procedure. This surgical procedure, which is more complicated in an animal with nonretractible claws, involves the removal of the third phalange, which is either a total or subtotal removal of the nail and the complete nail bed along the bone. The procedure results in severe pain in the dog which usually lasts for two or three weeks during which the dog should be medicated and closely examined for possible infection. Declawing of a healthy dog is rarely performed, although one text, General Small Animal Surgery, edited by Ira M. Gourley, D.V.M. and Philip B. Vaseur, D.V.M., which is an accepted treatise used in the practice of veterinary medicine, states that an onychectomy on a healthy dog is indicated to prevent digging or property damage. Performing an onychectomy is not completely prohibited under all circumstances in the practice of veterinary medicine. Under the terms and conditions of the Final Order, Respondent was restricted from performing any surgery other than "normal and routine spays, neuters, croppings and treatment of abscesses" without obtaining a second opinion by a licensed veterinarian approved by the Board. The Final Order did not, however, require Respondent to abide by the second opinion. Respondent consulted by telephone with her direct monitor, Dr. Adey, regarding performing the declawing procedure. Dr. Adey strongly advised Respondent against performing the procedure. After "shouting out" his objection to the procedure, Dr. Adey, nonetheless, reviewed with Respondent the appropriate incisions to be made in performing the surgery. Dr. Adey did not forbid Respondent from performing the surgery because he did not believe that as Respondent's direct monitor he had the authority to do so. Respondent also discussed the declawing procedure with her indirect monitor, Dr. Piniero. Dr. Piniero advised Respondent that he did not believe in performing a declawing procedure on a healthy dog, and that in his opinion, such surgery was indicated only when there was a medical basis for the procedure, such as a cancer or a tumor present in the paw. Despite the advice of her direct and indirect monitors, Respondent on January 12, 1995, performed an onychectomy on Mrs. Armstrong's dog. Dr. Piniero was present at Respondent's clinic when Respondent began the operation; however, Dr. Piniero did not supervise, or otherwise participate in the surgery, and left before the surgery was completed. Respondent had not previously performed an onychectomy. The surgery on the Armstrong dog lasted more than two hours. Following the surgery, the Armstrong dog remained at Respondent's clinic. The next day, January 13, 1995, Amy Armstrong called Respondent and was informed that her dog was doing well, but would be in severe pain for a while and that the recovery period would be approximately two weeks. On January 14, 1995, Mrs. Armstrong's husband visited the dog at Respondent's clinic. The dog's paws were heavily bandaged, but the dog was able to ambulate at that time. On Sunday, January 15, 1995, the Mr. Armstrong brought the dog home. At the time the dog was released, Respondent prescribed an antibiotic, Keflex, for the dog. Mrs. Armstrong spoke to Respondent by telephone, and was told to bring the dog back the following Wednesday or Thursday, to change the bandages. Respondent also informed Mrs. Armstrong that there would be additional charges for the care of the dog in excess of the original price of $65.00 for the surgical procedure. Mrs. Armstrong did not agree to the additional charges. When the dog returned home, Mrs. Armstrong became very upset. The dog was in severe pain, and could not ambulate. That evening Respondent called Mrs. Armstrong to check on the dog. Mrs. Armstrong expressed her concern for the dog's painful condition, and Respondent suggested the dog be given aspirin or Ascriptin. On Monday morning, January 16, 1995, Mrs. Armstrong observed a thick substance which she believed to be blood oozing through the dog's heavy bandages. Mrs. Armstrong became extremely concerned. She took the dog back to Dr. Robert Titus, at the Kingsway Animal Clinic, in Brandon, Florida. Dr. Titus observed what was determined to be serum seepage coming through the bandages on the dog's front paws, and noticed a "foul odor" similar to rotten meat coming from the paws. At that time, the dog's temperature was elevated to 104 degrees from a normal range of 100-102 degrees. Dr. Titus attempted to remove the bandages; however, because of the dog's severe pain, Dr. Titus was required to anesthetize the Armstrong dog in order to remove the bandages. Dr. Titus observed that the dog's front paws were swollen more than twice the normal size, and found serum leakage and serum blisters over the paws. Serum is a bodily fluid typically found at sites of inflammation. Dr. Titus also noticed a dehissing, or coming apart, of some sutures. Dr. Titus cleansed the surgical areas with antiseptics and antibiotics, and then rebandaged the paws. Dr. Titus sprayed an alum solution on the bandages to deter the dog from chewing on them. Dr. Titus also prescribed a systemic antibiotic (tetracycline) to fight any infection which might have been present, and also Tylenol 3 for pain. Dr. Titus sent the dog home with instructions to keep the dog as comfortable as possible, and to bring the dog back in two days to again cleanse the paws and rebandage them. On January 18, 1995, Mrs. Armstrong brought the dog back to Dr. Titus. The dog still was in severe pain, and the dog's temperature remained elevated at 104 degrees. Dr. Titus again was required to anesthetize the dog to remove the bandages. Dr. Titus observed more serum seepage, and cleansed the surgical areas, rebandaged the paws, and sent the dog home with the same instructions regarding care and medication. On January 20, 1995, Mrs. Armstrong called Dr. Titus to inform him that the dog was still having difficulty walking. Dr. Titus advised Mrs. Armstrong to continue the same care and medication procedures for a few more days, and then to bring the dog back. On January 23, 1995, Dr. Titus again examined the dog. The dog's temperature was 101 degrees. Dr. Titus cleansed and again rebandaged the dog's paws. At that time the swelling was greatly diminished, and no serum leakage was observed. The paws appeared to be healing, and Dr. Titus discontinued the antibiotics and pain medication. Mrs. Armstrong was informed when to take the bandages off, and to return to Dr. Titus only if the dog showed severe pain. Dr. Titus expressed no opinion as to whether the surgery on the Armstrong dog was performed in accordance with the standard of care acceptable in the practice of veterinary medicine. On January 27, 1995, Mrs. Armstrong called Dr. Titus to inform him that the dog was doing well, and was able to run. The Armstrong dog has now recovered from the surgery; however, the declawing procedure on the dog's front paws has not stopped the digging problem. Mr. and Mrs. Armstrong have kept the dog. Dr. Gary W. Ellison, Associate Professor at the College of Veterinary Medicine of the University of Florida, was qualified as an expert witness for Petitioner. Dr. Ellison testified that an onychectomy is not a common veterinary procedure. Unlike the declawing of an animal with retractable claws, such as a cat, declawing of an animal with nonretractible is a more complicated and difficult procedure and, in Dr. Ellison's opinion, should not be performed unless there is a medical necessity. Dr. Ellison, after reviewing the records, and hearing the testimony in this case, concluded that Respondent did not comply with the minimum standard of care and treatment in performing an onychectomy on the Armstrong dog. Specifically, Dr. Ellison testified that Respondent failed to properly consult with the owner, failed to recommend alternatives to the procedure, and should not have performed the onychectomy except for medically necessary reasons. Dr. Ellison further opined that Respondent was not prepared to do the surgery, which he considered improperly done, resulting in abnormal swelling, bleeding and infection of the paws. Dr. Ellison, however, acknowledged that General Small Animal Surgery, edited by Ira M. Gourley and Philip Vaseur, is an accepted treatise used in the practice of veterinary medicine, and that this treatise states that onychectomy is indicated to prevent digging and property damage. Dr. Ellison also acknowledged that the medication prescribed by Respondent for the Armstrong dog was acceptable under the circumstances, and that it is not unexpected for an onychectomy to produce swelling, bleeding and potential infection. Dr. Richard Goldston, a veterinarian qualified as an expert witness for Respondent, testified that in his opinion performing an onychectomy on a healthy dog was not an acceptable procedure unless there was no alternative and the dog would be euthanized. Dr. Goldston also recognized that accepted treatises state that an onychectomy is indicated to prevent digging. Dr. Goldston further testified that even a properly performed onychectomy produces inflammation and swelling, and that there would be a likelihood of infection. According to Dr. Goldston, normal post-operative recovery is two or three weeks, and a recovery period of less than two weeks would be considered successful. The recovery period of the Armstrong dog was acceptable. Another veterinarian, Dr. Edward Dunham, testified that in his twenty- five years of practice, he had performed an onychectomy on three occasions, and that while the procedure was not common, the procedure did not violate the ethical standards of the practice of veterinary medicine. Dr. Dunham further testified that he would not perform an onychectomy again.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: As to Count I, that Respondent's license be SUSPENDED for six months, that Respondent's probation be continued for five (5) years, with additional requirements for direct supervision. It is further recommended that Counts II and III be DISMISSED. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of June, 1995. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1995. APPENDIX As to Petitioner's Proposed Findings of Fact 1. - 30. Accepted and incorporated. Rejected as irrelevant. - 54. Accepted and incorporated. 55. - 61. Accepted and incorporated. Accepted, but Dr. Ellison further acknowledged that there is no prohibition on the procedure. Accepted, but Dr. Ellison further testified there is no prohibition on the procedure. Accepted, but Dr. Goldston and Dr. Dunham further testified that they had performed declawing operations, and that there is no prohibition on performing the procedure. As to Respondent's Proposed Findings of Fact 1. - 7. Accepted and incorporated. Accepted, except for second sentence which is rejected as irrelevant. - 11. Accepted and incorporated. Accepted as to the number of hours. Accepted and incorporated. Accepted to the extent that on one occasion Dr. Adey gave Respondent an assignment. Accepted as to dates cancelled, rejected as to reasonableness of effort. Rejected as not supported by the evidence. Accepted and incorporated. Accepted and incorporated. Accepted, except for second sentence. and 21. Accepted and incorporated. Rejected. - 28. Accepted and incorporated. Accepted, except date is October 25, 1994. Rejected, the initial inquiry was regarding the surgery and fee. Accepted and incorporated. Accepted to the extent that Mrs. Armstrong elected not to pursue nail filing. and 34. Rejected. 35. - 38. Accepted. Accepted except Dr. Ellison testified that the resultant swelling was abnormal. Rejected. - 44. Accepted. Accepted, except as noted in finding 39. and 47. Accepted. Accepted, to the extent that there are other publications on onychectomies. - 53. Accepted. Accepted, except that Dr. Dunham testified he does not now perform the procedure. Accepted, except that infection is a possibility, not an expectation. Accepted, except as to date. Rejected. See Finding 30. Accepted. Accepted. See Finding 32. and 61. Rejected. 62. - 65. Accepted. See Finding 39. Accepted. Accepted, except that Dr. Piniero left before the surgery concluded. Rejected. - 73. Accepted. See Finding 45. and 76. Accepted. See Finding 48. - 82. Accepted. See Finding 54. See Finding 55. Accepted, to the extent that Dr. Piniero responded in a letter to DBPR that Respondent was qualified. Accepted. COPIES FURNISHED: Susan E. Lindgard, Esquire James E. Manning, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward M. Brennan, Esquire 100 South Ashley Drive, Suite 1600 Post Office Box 3429 Tampa, Florida 33601-3429 Dr. Marianne T. Keim 800 West Kennedy Boulevard Tampa, Florida 33606 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Susan Foster Board of Veterinary Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792
