Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: On or about June 27, 1985, a probable cause panel of the Board of Veterinary Medicine met to receive and review investigative reports resulting from complaints received from certain individuals concerning Petitioner's treatment of their pets. Previous to the meeting of the probable cause panel, Luke Blanton, D.V.M. (Blanton) reviewed the factual allegations in the investigative reports and opined, that if subsequently proven, they would constitute the negligent or incompetent practice of veterinary medicine. Based on the investigative reports and Blanton's opinion concerning the factual allegations, the panel found probable cause that Petitioner's activities had violated applicable statutory provisions, and subsequently, on or about July 12, 1985, a three-count Administrative Complaint was issued against Petitioner charging him with: (a) making misleading, deceptive, untrue or fraudulent representations in the practice of his profession; (b) violating a lawful order of the Board or Department previously entered in a disciplinary hearing and; (c) being found guilty of fraud, deceit, negligence, incompetence and misconduct in the practice of veterinary medicine. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was sent to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue an Recommended Order based thereon. The matter was given Division of Administrative Hearings's Case Number 85-2853. On or about August 7, 1985, the attorney for Petitioner discussed possible settlement with Respondent's attorney but no settlement agreement was reached. Petitioner was willing to accept sanctions such as an administrative fine, continuing veterinary education and certain supervisions over his practice but Respondent was seeking revocation or long-term suspension of license which was not acceptable to Petitioner. On or about December 6, 1985, a probable cause panel of the Board of Veterinary Medicine met to receive and review an investigative report concerning the Petitioner's operation of a veterinarian establishment without a premises permit. The panel found probable cause that Petitioner's failure to obtain a premises permit violated the applicable statutory provisions, and subsequently, on or about December 24, 1985 an Administrative Complaint was issued against Petitioner charging him with failure to obtain and possess a premises license. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57,(1) Florida Statutes. The case was sent to the Division of Administrative Hearings to conduct an evidentiary hearing and to issue a Recommended Order based thereon. The matter was given Division of Administrative Hearings's Case Number 86-0122. By order dated January 23, 1986 Case Number 86-0122 was consolidated with Case Number 85-2853. On or about May 18, 1986, a probable cause panel of the Board of Veterinary Medicine met to receive and review investigation reports resulting from complaints received from certain individuals concerning Petitioner's treatment of their pets. Previous to the meeting of the panel, Blanton reviewed the factual allegations in the investigative reports and opined, that if subsequently proven, they would constitute the negligent and incomplete practice of veterinary medicine. Based on the investigative reports and Blanton's opinion concerning the factual allegations, the panel found probable cause that Petitioner's activities had violated applicable statutory provisions, and subsequently, on or about May 28, 1986, a two-count Administrative Complaint was issued against Petitioner charging him with: (a) being guilty of negligent and incompetency in the practice of veterinary medicine and; (b) being guilty of fraud, negligence, incompetency, or misconduct in the practice of veterinary medicine. Petitioner disputed the allegations contained in the Administrative Complaint and requested a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was sent to the Division of Administrative Hearing to conduct an evidentiary hearing and to issue an Recommended Order based thereon. The matter was given Division of Administrative Hearings' Case No. 86-2305. By order dated September 6, 1986, Case Number 86-2305 was consolidated with Case Numbers 85-2853 and 86-0122. Several months prior to setting up his veterinary practice, Petitioner had requested inspection by Respondent for the issuance of a premises permit. Respondent did not inspect Petitioner's premises before he was ready to open, therefore, Petitioner began his practice without a premises permit. Based on Respondent's failure to comply with Petitioner's timely request the charges in Case No. 86-0122 were dropped and a notice of Voluntary Dismissal was filed and Case No. 86-0122 was closed. On or about October 1, 1986, Respondent filed a Motion to Amend its Administrative Complaint in Case No. 85-2853 which was granted by order dated October 3, 1986. The effect of the amendment was to delete five (5) of the six (6) individual complaints. The reasons for the amendment was the unavailability of certain witnesses and the unwillingness of other witnesses to testify. On or about October 1, 1986, Respondent filed a Motion to Amend the Administrative Complaint in Case No. 86-2305 which was granted by order dated October 3, 1986. The effect of the amendment was that certain facts were deleted or expanded, but the basic charges remained. On or about October 17, 1986, the parties entered into a Pre-Hearing Stipulation which indicated a clear dispute of fact as to the three (3) remaining incidents which were scheduled to go to hearing. Prior to the hearing, the parties entered into a settlement stipulation dismissing all remaining charges and provided, among other things, for: (a) a formal reprimand of Petitioner by the Board; (b) the restriction of Petitioner's veterinary practice for one (1) year, during which time Petitioner shall practice under the supervision of another licensed veterinarian for at least three (3) days per month and; (c) Petitioner to successfully complete the Central Florida Academy of Veterinary Medicine, Inc. seminar series for 1986- 1987. Upon presentation to the Board of Veterinary Medicine certain paragraphs of the settlement stipulation were amended which nonetheless resulted in dismissing all remaining cases and charges. The amended stipulated settlement provided, among other things, for: (a) formal reprimand of Petitioner by the Board; (b) imposition of a $500.00 administrative fine; (c) restriction on Petitioner's veterinary practice with specific supervision of surgical practice and; (d) mandatory attendance of all sessions of the Central Florida Academy of Veterinary Medicine, Inc., seminar series for eighteen (18) months as continuing education. The billing invoice and the time records attached to Petitioner's attorney's affidavit does not detail the amount of time expended on each individual case but shows the total time expended on all three (3) cases and the testimony of Petitioner's attorney did not shed any light in this regard. The evidence is clear and unrebutted that the Petitioner is a "small business party" as that term is defined in Section 57.111(3)(d), Florida Statutes. The evidence is clear that the administrative proceedings material to this proceeding were initiated by the Respondent, a state agency.
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. /
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
