Findings Of Fact Based upon the record evidence and the factual stipulations entered into by the parties, the following Findings of Fact are made: Respondent's Licensure and Practice Respondent is now, and was at all times material hereto, a veterinarian authorized to practice veterinary medicine in the State of Florida under license number VM 1797. Respondent is a sole practitioner. He owns and operates the Kendall Lakes Pet Health Care Center in Dade County, Florida. Case No. 90-4549 On or about October 6, 1988, J.C. took his eight year old English Bulldog, 3/ R.C., to Respondent's office. The purpose of the visit was to have Respondent examine a lump that J.C. had discovered under R.C.'s chin while playing with the dog. Respondent had last seen R.C. a few years back when he treated him for an ear infection. Since that time R.C. had not been examined by any veterinarian. Upon approaching the dog in the examining room, Respondent noted a foul odor emanating from the dog's ears indicative of an ear infection. Furthermore, he could see that the dog's teeth had an extraordinary amount of tartar buildup and, more importantly, that the dog's lymph nodes were swollen. After palpating the dog's lymph nodes, Respondent told J.C., who was present during the examination, that it was likely that the dog had cancer 4/ and that he needed to take a blood sample from the dog. An attempt was then made to draw blood from the dog. R.C., however, in obvious discomfort, became unruly. He snarled, showed his teeth and shook his head. J.C. tried to restrain the dog by holding him down, but was unable to do so. As a result, no blood sample could be obtained. Conventional wire muzzles do not fit English Bulldogs because they are a brachycephalic or "smashed face" breed. Accordingly, in an effort to restrain R.C., Respondent tied R.C.'s mouth closed with a hospital lead. English Bulldogs tend to have congenitally small tracheas and anatomical deficiencies in the areas of their nose and throat which lead to difficulty in breathing. Consequently, caution must be exercised when muzzling this breed of dog. The practitioner should make sure that the dog is able to breath satisfactorily through its nose or that the muzzle is loose enough so that the dog can still breathe through its mouth. Unlike some English Bulldogs, R.C. was able to breath through his nose for an extended period of time, as evidenced by the fact that he slept with his mouth closed. As a general rule, tranquilizing is an attractive alternative to muzzling as a means of restraining an English Bulldog because respiratory compromise is less of a risk. The use of this method of restraint, particularly where the dog is in the advanced stages of cancer, is not free of problems, however. Whether tranquilizing or muzzling should be employed in a particular instance is a decision to be made by the practitioner based upon his assessment of the physical characteristics and condition of the dog under his care. It has not been shown that, in exercising his professional judgment to muzzle rather than to tranquilize R.C., Respondent acted in a manner inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or that he engaged in conduct that fell below any minimum standard of acceptable care for veterinarians in the community. After he was muzzled, R.C. continued to struggle. J.C. was holding the dog around the head and shoulders, but was unable to control him. Respondent therefore placed a towel over R.C. to try to subdue the dog. J.C. meanwhile maintained his grip on the dog. Shortly thereafter, R.C. went limp and collapsed. Respondent picked up R.C. and carried him to a treatment table. He took a stethoscope to the dog's chest to listen for a heartbeat. Hearing none, he performed an external cardiac massage, but with no success. Respondent looked down R.C.'s throat and determined that, because R.C.'s lymph nodes were so swollen, it would not be possible to quickly pass an endotracheal tube through the dog's trachea. Respondent therefore had a member of his staff attempt to administer oxygen to R.C. by using a "face mask" device. While this technique, as a general rule, is relatively ineffective with this breed of dog, it was the best means available under the circumstances. Respondent instructed his staff to fill a syringe with epinephrine. They did so and he administered the drug to R.C. Under ideal conditions, epinephrine should not be administered before an ECG is performed to determine if epinephrine is indicated. In the instant case, however, while he had the equipment, Respondent did not have the time to perform an ECG on R.C. Throughout the time that these efforts were being made to revive R.C., an emotionally distraught J.C. was yelling and shouting at Respondent. While Respondent was unsuccessful in his efforts to resuscitate R.C., it has not been shown that these efforts were inconsistent with what a reasonably prudent veterinarian would have done under like circumstances or constituted conduct that fell below any minimum standard of acceptable care for veterinarians in the community. After R.C. was pronounced dead, J.C. did not request that an autopsy be done and therefore none was performed. Accordingly, it is impossible to determine with a high degree of medical certainty the cause of R.C.'s death. A member of Respondent's staff recorded information concerning R.C.'s visit on the dog's chart. The entries made, however, provided very little detail regarding what happened during the visit. There was no indication that a physical examination had been conducted. Furthermore, while there were notes that oxygen and "2 1/2 cc epinephrine" 5/ had been administered, the entries made did not reflect how they had been administered, nor did they indicate what other resuscitation efforts had been made. Also missing was an entry reflecting that an autopsy had neither been requested nor performed. Case No. 90-8113 On or about June 18, 1990, Detective Jerry Rodriguez of the Metro-Dade Police Department, who was working undercover at the time, met with Respondent at the Kendall Lakes Pet Health Care Center. The meeting was arranged by a confidential informant. After he was introduced to Respondent by the confidential informant, Detective Rodriguez entered into negotiations with Respondent to purchase Winstrol-V anabolic steroids. The negotiations culminated in Detective Rodriguez agreeing to buy a bottle of Winstrol-V from Respondent for $1,000. Respondent was led to believe by Detective Rodriguez that these steroids would be used for human consumption. Respondent accepted a $1,000 advance payment from Detective Rodriguez and issued him a receipt. Respondent did not fulfill his end of the bargain, nor did he ever have any intention to do so. He never made any steroids available to Detective Rodriguez, nor did he take any action, including ordering or prescribing the steroids, toward that end. 6/ A subsequent inspection of Respondent's veterinary facility conducted on or about June 18, 1990, revealed the presence of certain prescription medications that were beyond the expiration date or had obliterated labels which were missing lot numbers, manufacturers' names and addresses and expiration dates.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Veterinary Medicine enter a final order (1) finding Respondent guilty of maintaining inadequate medical records, in violation of Section 474.214(1)(f), as charged in the Administrative Complaint issued in Case No. 90-4549; (2) imposing a $1,000.00 administrative fine and placing Respondent on probation for a period of one year for this violation; and (3) dismissing the remaining charges against Respondent set forth in the Administrative Complaints issued in Case Nos. 90-4549 and 90-8113. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 13th day of June, 1991. STUART M. LERNER 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 13th day of June, 1991.
The Issue The issue for determination is whether Respondent committed the offenses set forth in the administrative complaint, and if so, what action should be taken.
Findings Of Fact The Department of Business and Professional Regulation, Board of Veterinary Medicine (Petitioner) is the state agency charged with regulating the practice of veterinary medicine in the State of Florida, pursuant to Chapter 474, Florida Statutes. Oliver R. Jones (Respondent) is, and has been at all times material hereto, a licensed doctor of veterinary medicine in and by the State of Florida, having been issued license number VM 0001439. On or about December 29, 1993, Cleo, a female cat, was presented to Respondent by the cat owner's mother for spaying. The owner's mother signed the surgical authorization form, and the surgery was scheduled for later that morning. At that time no history was taken on Cleo because the owner's mother had no knowledge of Cleo's history. Respondent provided the owner's mother with forms which requested information regarding Cleo's history and which were to be given to Cleo's owner. Not receiving any communication from the owner, Respondent telephoned the owner. He discussed additional procedures which were recommended for Cleo and inquired about Cleo's history. The owner refused any additional procedures and provided Respondent with no history on Cleo. Cleo was a referral through the Pet Aid League (PAL). PAL is an organization which offers spaying and neutering of animals at a reduced cost. Respondent was one of many veterinarians agreeing to accept referrals from PAL at PAL's reduced cost. Even though Respondent had no history on Cleo, based upon his examination of Cleo and his years of experience and training, Respondent determined that Cleo's health was appropriate for surgery. Respondent performed the spaying with no noted complications. Respondent used the same spaying procedure that he had used on all of his other patients without incident. At or around 5:30 p.m. or 6:00 p.m. on the same day as surgery, Cleo's owner picked her up. Respondent provided Cleo's owner with a postsurgical information sheet and advised the owner to keep Cleo confined to the carrying cage in which Cleo was located and not allow Cleo to roam about. The cost of the surgical procedure under PAL's guidelines was $32 which the owner paid. After surgery and up to and upon discharge, no bleeding was noted by Respondent from the surgical area. Cleo's owner lived approximately five minutes from Respondent's office. Upon arriving home, the owner laid a towel in front of Cleo's cage and allowed Cleo to leave the cage and lay on a towel. Cleo acted weak and lethargic. After approximately 15 minutes, Cleo continued to act weak and lethargic. The owner observed blood on the towel and on and around the area of the sutures where the surgical incision was made. The owner attempted to contact Respondent by telephone but received no answer. The owner assumed Respondent's office was closed. 1/ At or around 7:00 p.m. on the same day of surgery, the owner took Cleo to Pet Emergency Center (Pet Emergency) on North University Drive in Tamarac, Florida. Cleo was treated by Dr. Anwar Basta. Pet Emergency contacted Respondent after obtaining information from the owner that Respondent had spayed Cleo. Respondent requested that the emergency doctor do whatever was needed to save Cleo's life. Expressing concern regarding the cost of the emergency medical services, Cleo's owner was informed by Pet Emergency that Respondent was a shareholder in Pet Emergency and, therefore, she would be charged only one- half the cost for the medical services rendered, with no emergency fee. Dr. Basta observed that Cleo's mucous membranes were pale and depressed, and that she was bleeding from the suture area and internally. Cleo's packed cell volume (PCV) was 9. He administered an intravenous (IV) catheter, lactated ringers with 3cc dexamethasone and anesthetized Cleo. Dr. Basta reopened the surgical area and observed that Cleo was bleeding from the body of the uterus or "uterine stump." There was an indication of ligation but the ligature was not present. The absence of a ligature is not unusual since it is absorbable. Dr. Basta stopped the bleeding and re-sutured the incision. Cleo was given 60cc of blood by transfusion. After the treatment by Dr. Basta, Cleo was doing better and remained at Pet Emergency Center overnight. Respondent contacted Pet Emergency twice, checking on Cleo's condition. At discharge, on December 30, 1993, Dr. Basta prescribed antibiotics and advised Cleo's owner to visit the family veterinarian for further care. Cleo's owner paid $180.00 for the medical services rendered by Pet Emergency Center and Dr. Basta. After discharge, on December 30, 1993, instead of taking Cleo to Respondent, the owner took Cleo to Pine Island Animal Hospital (Pine Island). Cleo was treated by Dr. David Smith. At admission, Pine Island requested previous history of Cleo on a form. The history section was left blank by Cleo's owner. Cleo had previously received medical services at Pine Island. In October 1993, when the owner first acquired Cleo, Pine Island treated Cleo twice for hook and tape worms. Dr. Smith's role in treating Cleo after the emergency treatment by Pet Emergency Center was one of providing supportive care, such as IV, fluids, food, antibiotics, and close observation. Cleo remained at Pine Island for two days (December 30 - 31, 1993). Cleo was doing fine. Cleo's owner paid $214.18 for the medical services rendered by Pine Island and Dr. Smith. Respondent was not aware that Cleo had been taken to Pine Island after discharge from Pet Emergency Center. Respondent attempted to reimburse Cleo's owner $100.00 of the monies expended by Cleo's owner on the medical services provided due to the complications from the spaying. Cleo's owner returned Respondent's check, refusing to accept any money unless it was the entire sum expended. On May 10, 1994, Respondent provided Petitioner's investigator with his complete medical records on Cleo. Also, Respondent executed a verification of completeness form, which was notarized on May 10, 1994. Respondent kept his PAL patients' medical records 2/ separate from and on different forms than his regular patient records. Respondent's medical records on Cleo were generated at the time of surgery and completed during the day as each service was being completed for Cleo. Respondent's medical records failed to provide the results of Cleo's physical examination, Cleo's health, and what occurred during surgery. Respondent's medical records on Cleo are inadequate. Further, Respondent's medical records did not contain a history on Cleo. However, it is not unusual for veterinarians not to have the history of a patient. Performing a postoperative examination is essential. Respondent failed to examine Cleo at time of discharge. If Respondent had examined Cleo at the time of discharge from his care, he should have observed the symptoms of blood loss by Cleo and not have discharged Cleo. A normal PCV for a cat is 38 - A PCV below 12 is an indication that the patient is in distress, that the patient has been bleeding internally for some time, that the blood has had a chance to dilute and that an emergency transfusion is needed. A PVC of 9 is a critical point and indicates a significant blood loss which has occurred over a period of hours. Symptoms of blood loss include paleness of the mucous membranes, the gums or the eyeballs, and weakness. Even though Respondent claims to have performed such an examination, the medical records provided to Petitioner's investigator failed to show a postoperative examination at discharge or the results thereof. 3/ Spaying is the common term for ovariohysterectomy which is the surgical removal of the ovaries and body of the uterus. The procedure prevents an animal from going into heat and reproducing. Variations exist in the procedure of spaying. However, the commonality in all variations is removing the ovaries and the uterus and ensuring that the stumps are securely ligated to prevent bleeding. Ligation is the process of tying the stump using an absorbable suture (the ligature). The suture is tightly tied in a knot so that vessels are constricted to prevent bleeding; usually two knots are used. Respondent uses the same procedure for ligation in all of his spaying, which was no different when he spayed Cleo. In his procedure for spaying, Respondent uses a triple clamp technique. For the ovary and uterine horn, he places two clamps below the ovary and one above the ovary at the proper ligament. The lower clamp crushes the tissue and leaves an indention in the tissue when it (the lower clamp) is removed. In ligation, the suture is placed around the tissue in the indention left by the lower clamp and the suture is tied using a surgeon knot, i.e., a triple tied simple knot, and then a square knot over the surgeon knot. The broad ligament which has the vessels in it is cutoff. The ovarian stump is checked for bleeding. This same procedure is used for the other ovary and uterine horn. For the cervix, one clamp is placed anterior to the cervix, a second clamp is placed above that clamp, and another clamp is placed above the previous clamp. The bottom clamp crushes the tissue and leaves an indentation in the tissue when it (the bottom clamp) is removed. The same tie procedure (ligation) previously described for the ovarian stump is used for the uterine stump. A check for bleeding at the uterine stump is also made. The standard and accepted procedure in veterinary medicine under similar conditions and circumstances for ligation is different from that used by Respondent. Instead of looping or placing the suture around the tissue in the indention left by the clamp and then tying the suture, the standard and accepted procedure is to loop or place the suture around the tissue in the indention left by the clamp and then use a stick tie, or transfixation suture which is passing the suture through the tissue and then tying the suture. The standard and accepted procedure would prevent the suture from slipping off the ovarian stump or the uterine stump. Slippage would cause the ovarian stump or uterine stump to bleed. Respondent has been licensed in the State of Florida since December 31, 1973. He has performed over 3,000 spayings. This is the first time that a complaint has been filed against Respondent during his over twenty years of practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Veterinary Medicine enter a final order: Placing Oliver R. Jones on probation for a period of one (1) year under such terms and conditions as deemed appropriate by the Board; and Imposing an administrative fine of $3,000. DONE AND ENTERED this 1st day of November, 1995, in Tallahassee, Leon County, Florida. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1995.
The Issue 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 cause was initiated upon the filing of a Petition for Award of Attorney’s Fees and Costs, pursuant to Florida Statutes 57.111. A formal hearing was originally scheduled for Gainesville, Florida, however, pursuant to agreement of the parties it was dispensed with. The parties stipulated to the record to be considered in this proceeding, agreeing upon exhibits and upon a time period for submission of proposed final orders. The appearances were as follows.
Findings Of Fact The Petitioner, Samy H. Helmy, was a licensed veterinarian in the State of Florida at all times pertinent hereto. The license was suspended by Final Order of the Board of Veterinary Medicine on or about August 3, 1990 and the suspension was upheld on appeal. That Final Order became a Final Decision upon the Court’s Mandate and Notice issued on December 26, 1991. On or about February 21, 1992 Mr. Henry Scheid, in his capacity as an investigator for the Department of Business and Professional Regulation, Board of Veterinary Medicine, (DBPR) set up a “sting operation” in which he attempted to apprehend the Petitioner in activities which could be construed as unlawfully practicing veterinary medicine with a suspended license. Mr. Scheid’s investigative report is an exhibit by stipulation in this proceeding. Mr. Scheid acknowledges in this report that another person, Dr. S. Strahler was present on the Petitioner’s veterinarian practice premises at the time he made his investigation. Mr. Scheid also recounts in his investigative report that although the Petitioner examined the animal which was involved in the sting operation, when it became necessary to give an injection to the animal, an employee of the veterinary practice who proved to be Dr. Strahler, was called in to actually perform the injection. It does appear that the investigator, Mr. Scheid, was aware that a licensed veterinarian was practicing on the premises. He would thus seem to have been aware that Dr. Strahler may have been in a position to supervise Dr. Helmy’s practice under his suspended license. However, there is also contained in the investigative report a statement by the investigator to the effect that he interviewed Dr. Strahler. Dr. Strahler indicated that he had only worked on Dr. Helmy’s premises for several days in February 1992 and that indeed, Dr. Helmy had performed surgeries without Dr. Strahler’s assistance, which could reasonably be interpreted by Mr. Scheid that Dr. Helmy might have been performing veterinary practice in an unsupervised way. In the investigator’s report, page 10, reference is made to his interview with RFS (Dr. Strahler) as follows: “On February 27, 1992 investigator made phone contact with RFS. He advised he had only worked for subject; February 14, 1992, Friday, all day; February 15, 1992, Saturday, one-half day; and February 21, 1992, Friday, all day. During questioning RFS, with hesitation, did advise that subject was conducting surgeries, with or without RFS assistance. Further advised, he would cooperate as the last day he worked subject, he found out that subject’s license was suspended. After contacting investigator Sowder, Marion County Sheriff’s Office, a meeting with State Attorney for a sworn statement was set for March 4, 1992, at 2:00 p.m.” There are a number of interviews of animal owners who took their animals to Dr. Helmy, for examination and/or treatment. Descriptions of these interviews are recounted in the investigator’s report. The results of those interviews indicate that Dr. Helmy, was performing veterinary practice in terms of diagnosing, taking blood samples, and performing various aspects of treatment. (See the Respondent’s proposed Findings of Fact numbers six through sixteen, adopted here by reference). Although Dr. Helmy, could perform veterinary practice. under the statute cited below, so long as he was supervised by a duly licensed veterinarian in good standing with the Board, the interview of Dr. Strahler (“RFS”) indicates that indeed he may have been practicing without any supervision on some occasions. The important point is that the investigator had sufficient investigative facts to have a good faith belief that he had discovered the Petitioner, practicing with a suspended license, without proper supervision by a duly licensed veterinarian on the premises. He could thus reasonable conclude then that the Petitioner was not in compliance with the statute concerning supervision cited below. After his visits to the premises and contact with law enforcement authorities, Mr. Scheid filed the subject report on approximately April 19, 1992. Thereafter, the investigation apparently remained an open or active investigation, but as far as the evidence in this case shows, no administrative complaint was filed for a substantial period of time. In fact, on September 10, 1993 Nancy M. Snurkowski as chief attorney for the agency signed a document called a “Closing Order” on behalf of George Stuart, Secretary of the Department. That Closing Order indicates that the complainant, the agency, had alleged that the subject, Dr. Helmy, had violated Sections 474.213(1)(f) and 474.215(3), Florida Statutes (1991) for operating a veterinary establishment when the responsible veterinarian’s license had been suspended, or by knowingly employing an unlicensed person or persons in the practice of veterinary medicine. The Closing Order implies that the investigation substantiated the complaint in that the subject was a veterinary establishment operated by Dr. Helmy when his license to practice had been suspended. The Closing Order accounts that he continued to practice despite that suspension. The Closing Order states that he continued to practice despite that suspension. The Closing Order also states that: “[T]he establishment now lists Robert F. Strahler, DVM as a responsible veterinarian. Robert F. Strahler, DVM is a Florida-licensed veterinarian in good standing with an active license. He acquired the facility and premises permit number of VE0002026 on August 27, 1992. The previous permit number VE0001793 is no longer valid.” “The law: “Based on the foregoing, probable cause does exist at this time to believe that the subject was in operation while its responsible veterinarian’s license was suspended and it employed unlicensed individuals in the practice of veterinary medicine. However, since the unlicensed activity has been stopped and the responsible veterinarian holds a valid active license in good standing, this case will be closed.” Thus on September 16, 1993 apparently the agency elected to terminate the prosecution with this “Closing Order”. The agency however, does not admit in that Closing Order that probable cause to believe that unauthorized veterinary practice done by the Petitioner did not exist. Rather, it merely indicates that, since the investigation was commenced, Dr. Strahler had become a licensed supervising veterinarian, or a “responsible veterinarian” in good standing for the establishment. Therefore the violation previously believed to have been found by Mr. Scheid had been alleviated at that point. That Closing Order appears to have been merely the determination of the investigation at that point. The evidence before the Administrative Law Judge does not actually indicate that a formal administrative complaint, based upon a probable cause finding by the Board, had been made at that time or previously. Nevertheless, in a probable cause panel meeting of November 30, 1993 (by telephone conference call) (the transcript of which is stipulated into evidence in this proceeding as Exhibit 3) probable cause to file an proceed on the administrative complaint which gave rise to this case was found by the Board of Veterinary Medicine. This may seem a harsh determination, since the Chief Attorney with the Board had recommended terminating the prosecution prior to that probable cause finding. However, the investigative report and related documents indicate that there was adequate reason to believe that unauthorized veterinary practice by Dr. Helmy had been conducted on the premises on and around the time when Mr. Scheid made his visitor visits to the premises and interviews of customers and others. Thereafter, prosecution of the administrative complaint proceeded, (albeit slowly). Thus the Board litigated this case in 1993 until 1996. There is no question with attorney’s fees and costs were incurred by the Respondent (Dr. Helmy) in that administrative complaint case during that time. In fact, there is no dispute about the reasonableness of the fees and costs claimed in this proceeding. After attempting to conduct a hearing, but after at least one continuance, and before the case proceeded to formal hearing, the complaint was voluntarily dismissed by the prosecuting agency on June 5, 1996. Dr. Helmy made no admissions or agreements at any time to prompt the Department of file the motion for dismissal on the basis of a negotiated settlement. A related criminal case was proceeding during 1992 through 1994 in the Fifth Judicial Circuit for Marion County Florida. Dr. Helmy was being prosecuted by the State based upon the same set of factual circumstances developed by Investigator Scheid. A Motion to Dismiss was filed by defense counsel in that case and the Circuit Court granted that motion based upon an undisputed set of facts which are the same underlying facts that gave rise to the administrative complaint in the formal proceeding underlying this attorney’s fee case. The circuit judge in that proceeding dismissed the criminal case against Dr. Helmy on January 27, 1995, finding that Dr. Helmy was providing supporting assistance under the supervision of responsible, duly- licensed veterinarian, who acted as a responsible veterinarian as defined by Chapter 474 Florida Statutes. The Circuit Judge found that the Petitioner’s actions at the times pertinent to the criminal proceeding and the administrative prosecution were lawful since they were done under the supervision of a duly- licensed, active practicing veterinarian. The Administrative Law Judge ruled upon the Motion to Dismiss, and a subsequent motion, which raised the issues of collateral estoppel Res Judicata made by Dr. Helmy’s attorney in the formal proceeding underlying this attorney’s fee case. It was thus determined that the principals of collateral estopped and Res Judicata did not apply due to lack of mutuality of parties, etc. Accordingly, the administrative proceeding continued to remain active for sometime until the agency, on its own motion, voluntarily dismissed the matter on June 5, 1996. It is true as Petitioner contends, that a deputy sheriff from Marion County, as well as Mr. Scheid, testified by deposition that their opinions concerning Dr. Helmy’s guilt of unauthorized practice of veterinary medicine would be different if they assumed that his actions were performed under the immediate supervision of a licensed veterinarian. Dr. Gary Ellison, an expert witness for the Department in the Helmy case acknowledged, in his deposition, essentially the same thing that if “everything in the complaint” had been done under the immediate supervision of a licensed veterinarian then Dr. Helmy would not have broken the law. The fact remains, however, that at the time the investigation was commenced and Mr. Scheid conducted his interviews and conducted his operation on the then Respondent, Dr. Helmy premises, he had a reasonable belief that a violation had taken place. His conversation with Dr. Strahler himself could give him a good-faith belief that Dr. Strahler indeed did not truly supervise Dr. Helmy. Thus, the Board, at the time probable cause was found in the administrative complaint was filed, had a reasonable basis in fact and in law to proceed against Dr. Helmy, even if it was later determined that in fact, his practice on those premises had been lawful. While it may seem unduly harsh for the Board to find probable cause after its chief attorney had recommended closing of the investigation, the fact remains that, at the time probable cause was found there was substantial justification for the Board to believe that unauthorized veterinary practice had been conducted by the Petitioner on the premises. The language of the “Closing Order” does not obviate such a finding. Finance evidence into this proceeding in the form of Dr. Helmy’s tax returns for 1993 and 1994, as well as other evidence (see Exhibit 12) show that the Petitioner does not have a net worth of more than $2,000,000. The evidence, in its totality also shows that Dr. Helmy was operating a sole proprietorship of a professional practice dispensing veterinary services, at “Highway 200 Animal Hospital” at the time of the initiation of the Board’s action. This is documented in the investigative report and by the registration certificate for the veterinary establishment included in the record of this case as stipulated Exhibit 12. In fact, Dr. Helmy had entered into a business lease for the premises where he located to Highway 200 Animal Hospital with the lease specifying that the premises were to be occupied for a veterinary office, and the lease beginning June 15, 1990 and continuing through June 14, 1995. Thus, at all times pertinent hereto, Dr. Helmy had a lease for a business establishment operating as a veterinary practice from 1990 through 1995. His veterinary practice was not incorporated nor was it a partnership. It can only be inferred from the evidence available that it was a sole proprietorship of Dr. Helmy.
Recommendation Accordingly, having considered the foregoing findings of fact and conclusions of law, the preponderant evidence of record and pleadings and arguments of the parties, it is therefore ORDERED that the petition of Samy Helmy, D.V.M. is denied.DONE AND ORDERED this 6th day of January, 1997, at Tallahassee, Florida. COPIES FURNISHED: Robert A. Rush, Esquire 426 N.E. First Street Gainesville, Florida 32601 James E. Manning, Esquire Department of Business and Professional Regulation P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax FILING (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1997. 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Susan Foster Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Respondent, Marianne T. Keim, is a licensed veterinarian in the State of Florida, holding license number VM 0005113 (Veterinarian). Respondent's license to practice veterinary medicine is currently under probation and emergency suspension. At all material times, Respondent practiced veterinary medicine in Tampa, Florida. Findings As To Count I Of The Administrative Complaint On August 18, 1994, the Board of Veterinary Medicine entered a Final Order in settlement of five (5) different cases involving allegations against the Respondent. The Final Order adopted a Stipulation of the parties, and was filed with DBPR on August 22, 1995. The Final Order resulted in the placing of Respondent's license to practice veterinary medicine on probation for a period of five (5) years. The Final Order imposed certain conditions on the Respondent's practice of veterinary medicine, and also imposed an administrative fine on Respondent in the amount of $3,000, payable within 180 days from the date the final order was rendered by the Board. The Final Order provides in pertinent part: The Respondent shall, in the future, comply with Chapters 455 and 474, Florida Statutes, and the rules promulgated pursuant thereto. The Respondent shall be placed on probation for five (5) years. The terms of the Respondent's probation are: Compliance with all requirements of this Final Order. Practice veterinary medicine with direct supervision by a Florida licensed veterinarian for not less than forty (40) hours per month. All other practice of veterinary medicine shall be with indirect supervision by a Florida licensed veterinarian. Personally appear before the Board of Veterinary Medicine at the first meeting after probation commences, semiannually, at the last meeting before probation terminates and at such other times as may be requested by the Board. The Respondent shall be notified by the Board staff of the date, time, and place of the Board meeting whereat Respondent's appearance is required. Failure of Respondent to appear as requested or directed shall be considered a violation of the terms of this Order, and shall subject the Respondent to disciplinary action. The direct and indirect supervisor shall be approved by the Board and shall review all aspects of the Respondent's practice of veterinary medicine. In the event the Respondent desires to change monitors, the Respondent shall notify the Board at least ten (10) days prior to the last date that the former monitor will be available. The Respondent shall allow the monitors access to Respondent's patient records, calendar, patient logs, or other documents necessary for the monitor to supervise the Respondent as detailed below. The responsibilities of the indirect monitoring veterinarian shall include the following: Review 25 percent of Respondent's active patient records at least once a month at the Respondent's office for the purposes of ascertain- ing the appropriateness of the Respondent's treat- ment, medication management, and the thoroughness with which her records are kept. The monitor shall go to Respondent's office once every month and shall review Respondent's calendar or patient log and shall select the records to be reviewed. Submit reports to the Board on a quarterly basis, in affidavit form, at least twenty-eight (28) days prior to each applicable Board meeting and each of which shall include: A description of Respondent's practice (type and composition). A statement addressing Respondent's com- pliance with the terms of probation. A brief description of the monitor's relationship with the Respondent. A statement advising the Board of any problems which have arisen. A summary of the dates the monitor went to the Respondent's office, the number of records reviewed, and the overall quality of the records reviewed. Any other reporting requirements. Maintain contact with the Respondent on a frequency of at least once per month. In the event that the monitor is not timely contacted by the Respondent, then the monitor shall report this fact in writing to the Board. The Respondent's monitor shall appear before the Board at the first meeting following commencement of the probation and at such other times as directed by the Board. It shall be Respondent's responsibility to ensure the appearance of her monitor to appear as requested or directed. Failure of the monitor, with- out good cause shown, to appear as requested or directed shall constitute a violation of the terms of this Order and shall subject the Respondent to disciplinary action. The responsibilities of the direct monitoring veterinarian shall include the following: Submit reports to the Board on a quarterly basis, in affidavit form, at least twenty-eight days prior to each applicable Board meeting and each of which shall include: A description of Respondent's practice (type and composition). A statement addressing Respondent's compliance with the terms of probation. A brief description of the monitor's relationship with the Respondent. A statement advising the Board of any problems which have arisen. A summary of the dates the monitor went to the Respondent's office, the number of records reviewed, and the overall quality of the records reviewed. Any other reporting requirements. The Respondent's monitor shall appear before the Board at the first meeting following commencement of the probation and at such other times as directed by the Board. It shall be Respondent's responsibility to ensure the appearance of her monitor to appear as requested or directed. Failure of the monitor, with- out good cause shown, to appear as requested or directed shall constitute a violation of the terms of this Order and shall subject the Respondent to disciplinary action. The Respondent shall obtain a second opinion, by a licensed veterinarian approved by the Board with respect to surgeries, excluding normal or routine spays, neuters, croppings and treatment of abscesses. The Respondent shall pay an Administrative Fine of three thousand dollars ($3,000). As Respondent has filed for protection in the United States Bankruptcy Court and has filed a plan of reorganization with said Court, the Respondent shall be allowed one hundred eighty (180) days from the rendition of the Final Order by the Board of Veterinary Medicine, to pay the fine. The fine shall be paid by the Respondent to the Executive Director of the Board of Veterinary Medicine, 1940 North Monroe Street, Tallahassee, Florida, 32399-0750. This time period may be extended by the Board for good cause shown. Any request for extension shall be submitted, in writing, to the Executive Director prior to the expiration of the 180 day time limit, at the address above. Pursuant to the Final Order, on October 19, 1994, Respondent made a required probationary appearance at the Board meeting in Orlando, Florida. When the meeting commenced, Respondent did not appear with her direct or indirect monitor, and the Board found Respondent in violation of the Final Order in that Respondent had not met the terms and conditions of her probation by failing to have her direct and indirect monitor appear for approval at the Board meeting. Respondent had sufficient time to locate a direct or indirect monitor, or to request an extension of time from the Board. At the October 19, 1994 Board meeting, Respondent represented to the Board that she had experienced difficulty in locating qualified, licensed veterinarians willing to accept the responsibilities of serving as her direct and indirect monitors as required by the Final Order. Prior to the conclusion of the Board meeting of October 19, 1994, Dr. Carlos Piniero, a veterinarian licensed in the State of Florida, and practicing in Hillsborough County, appeared and stated his willingness to serve as Respondent's indirect monitor. Respondent further indicated to the Board that she had obtained the consent of Dr. Robert Adey, a veterinarian licensed in the State of Florida, practicing in Winter Haven, Florida, to serve as her direct monitor. Pursuant to the Board's determination that Respondent had violated the terms and conditions of her probation, Respondent was instructed to discontinue her practice of veterinary medicine pending the Board's approval of her direct and indirect monitor as required by the Final Order. The Chairman of the Board, Dr. Bernard Myers, was given the authority to grant temporary approval for Respondent's direct and indirect monitors until the next meeting of the Board. On October 25, 1994, Dr. Robert Adey was temporarily approved by the Board chairman as Respondent's direct monitor, and Dr. Carlos Piniero was temporarily approved by the Board chairman as Respondent's indirect monitor. By letters dated December 22, 24, and 25, 1994, Respondent wrote individually to the seven members of the Board, Dr. Robert E. O'Neil, Dr. Carlos R. Pereira, Dr. Bernard Myers, Dr. Teresa L. Lightfoot, and Dr. Thomas F. Whitley, Ms. Cynthia Lewis, and Mr. Lewis Jennings, informing each individual member of her attempts to comply with the Final Order, as well as her difficulties in complying with the requirements of the direct monitor relationship. In these letters to the individual Board members, Respondent requested a reduction in her direct monitoring requirement from forty (40) hours per month to twenty (20) hours per month. At the next Board meeting on January 4, 1995, Respondent appeared with counsel, and with her direct and indirect monitors. After inquiring of the monitors and Respondent, the full Board confirmed the approval of Dr. Adey and Dr. Piniero to serve as Respondent's direct and indirect monitors, respectively. The Board did not consider, nor did the Board approve a reduction of the required forty (40) hours per month of direct monitoring of Respondent's practice of veterinary medicine by Dr. Adey. Respondent began her direct monitor relationship with Dr. Adey on October 20, 1994. As agreed to by her direct monitor, Respondent was required to attend Dr. Adey's clinic in Winter Haven, Florida, on each Thursday. From the onset, Respondent experienced difficulty in complying with the terms and conditions of the Final Order with respect to her relationship with her direct monitor, Dr. Adey. Because Dr. Adey practiced in Winter Haven, Respondent was required to travel approximately two hours each way from her office in Tampa, Florida, to Dr. Adey's clinic. Additionally, Dr. Adey restricted Respondent's activities in his clinic and, as a general rule, only allowed Respondent to observe his own practice. Dr. Adey expressed reservations regarding Respondent's abilities as a veterinarian, and accordingly, did not allow Respondent to practice veterinary medicine in his clinic except in very routine cases, and then only under his own observation and supervision, or the supervision of experienced members of his clinic staff. On one occasion, Dr. Adey gave Respondent an assignment on liver disease to complete at her own clinic. Respondent would also on occasion consult by telephone with Dr. Adey; however, Dr. Adey did not at any time monitor Respondent's practice of veterinary medicine at Respondent's Tampa clinic. According to Dr. Adey's records, Respondent was in attendance at Dr. Adey's clinic for approximately 15 hours in October of 1994, for approximately 28 hours in November of 1994, for approximately 32 hours in December of 1994, and for approximately 32 hours in January of 1995. Respondent's travel time, assignment time, or telephone consultation time are not included in the computation of these hours. From October 20, 1994 through the end of January 1995, Respondent missed three of her scheduled days for attendance at Dr. Adey's clinic. Two of the days were cancelled by Dr. Adey, and one day was cancelled by Respondent due to a meeting with her attorney. On January 27, 1995, Dr. Adey wrote a letter to Diane Gossett, an investigator with DBPR, stating that his direct monitor relationship with Respondent was unsatisfactory, and that under the circumstances, he was not able to attain the quality of direct monitoring of Respondent's practice of veterinary medicine that the Final Order of the Board required. On February 8, 1995, Dr. Adey wrote another letter to Diane Gossett expressing his continuing frustration with the direct monitor relationship with the Respondent, and tendering his resignation as direct monitor within ten (10) days. Dr. Adey subsequently agreed to remain as Respondent's direct monitor until March 12, 1995. On March 3, 1995, Respondent wrote to Susie Love, Program Administrator with the Board, expressing dissatisfaction with the inflexibility of the monitor situation, and requesting modifications of the Board's requirements in this regard. Respondent was informed by Susie Love by letter dated March 6, 1995, that approval of a direct monitor to replace Dr. Adey would have to be approved at the next Board meeting by the full Board. No action was taken by the Board with respect to the approval of a new direct monitor prior to the initiation of the emergency suspension proceedings against Respondent's license. The nature of the direct monitoring relationship established by Respondent with Dr. Adey did not satisfy the requirements imposed by the Final Order, in that Respondent did not practice veterinary medicine under the direct monitoring of Dr. Adey, but only was in attendance, and observed Dr. Adey's practice in Winter Haven one day a week. Respondent's indirect monitor, Dr. Carlos Piniero reviewed at least 25 percent of Respondent's records on a regular basis, consulted with Respondent as to her organization and record-keeping, and in this respect, Respondent was in compliance with the Final Order of the Board. Respondent has not paid the $3,000 fine assessed by the Board which was due 180 days from entry of the Final Order. Payment of the fine is overdue. By letter addressed to Susan Foster, Executive Director of the Board, dated December 5, 1994, Respondent requested an extension of time to pay the $3,000 fine. The letter was notarized by Thurston R. Smith also on December 5, 1994. Thurston Smith is a part-time employee of Respondent. The heading of the letter contains the correct business address of Susan Foster at 1940 North Monroe Street, Tallahassee, Florida, 32399. Respondent did not personally mail or fax the letter to Susan Foster, or request a return receipt. Dr. Lawrie Glickman, a friend of Respondent's testified that he believed the letter was among several items of mail he posted for Respondent. Thurston Smith testified that he believed the letter was among several items he faxed to DBPR for Respondent. Susan Foster did not receive the December 5, 1994, letter from Respondent by mail or by fax. DBPR has established normal and acceptable business procedures for processing incoming correspondence. In accordance with DBPR's normal business procedures, mailed or faxed letters addressed to the Board's Executive Director, Susan Foster, would routinely be opened and delivered to her office. Ms. Foster was personally familiar with Respondent, and also with the Board's actions relating to Respondent. Ms. Foster had received correspondence from Respondent on several other occasions, and had also received telephone calls from Respondent on several occasions. Any communication received by Ms. Foster from Respondent requesting an extension of time to pay a fine would, in the normal course of DBPR's procedures, have been brought to the Board's attention by Ms. Foster. A second handwritten letter from Respondent dated December 19, 1994, addressed to Susan Foster at the DBPR office in Tallahassee, also requested an extension of time to pay the $3,000 fine. The handwritten letter states that this is Respondent's second request for extension of time. Dr. Glickman testified he mailed and faxed this letter. Susan Foster did not receive the second letter. Respondent did not personally inquire of Susan Foster as to the status of Respondent's request for extension of time, nor did Respondent request that Ms. Foster place this matter on the agenda of the Board's next meeting on January 4, 1995. Respondent appeared, with counsel, at the next Board meeting on January 4, 1995; however, neither Respondent nor her counsel raised the issue of an extension of time in which to pay the fine with the Board. The Board did not consider, or approve an extension of time for Respondent to pay the $3,000 fine imposed by the Final Order. Respondent has not complied with the terms and conditions of the Final Order entered by the Board. Respondent did not satisfy the forty (40) fours per month of required direct monitoring of her practice of veterinary medicine. Respondent did not pay the $3,000 fine imposed by the Board within 180 days as required by the Final Order. Respondent's efforts in this regard do not constitute substantial compliance with a lawful order of the Board. Findings As To Counts II And III Of The Administrative Complaint On or about October 25, 1994, Mrs. Amy Armstrong inquired of Respondent as to performing a declaw procedure (also known as an onychectomy) on Mrs. Armstrong's six-month old English Springer Spaniel, Tilly. Mrs. Armstrong was concerned because her dog was digging in the yard, and scratching inside the house. Mrs. Armstrong was also concerned that her dog's digging and scratching would upset her landlord, and that she would be financially responsible for the damages caused by the dog. Mrs. Armstrong had initially contacted Respondent because Respondent's clinic advertised low-cost rates, and Mrs. Armstrong had been satisfied with Respondent's spay and neuter procedures previously performed on Mrs. Armstrong's cat and another dog. Mrs. Armstrong again called Respondent's clinic in mid-November 1994, and spoke with Daryl Dunnisch a member of Respondent's clinic staff regarding the declawing procedure. In late December of 1994, Mrs. Armstrong called again and Respondent personally discussed the declawing procedure with her. Respondent informed Mrs. Armstrong that the procedure required the dog to be anesthetized, but that the procedure should not be complicated for a young dog, that the recovery period would be a few days during which the dog would be sedated, and that the procedure should solve the digging and scratching problems Mrs. Armstrong was experiencing. Respondent also offered Mrs. Armstrong the alternative of filing down the dog's nails. Respondent's records reflect that Mrs. Armstrong was forewarned of the severe pain the dog would experience, as well as the lengthy recovery period. Respondent quoted Mrs. Armstrong a price of $65.00 for the declawing procedure. Mrs. Armstrong did not represent to Respondent or to a member of Respondent's office staff that she would euthanize the dog unless the declawing procedure were performed, but stated that she would need to consider other options about keeping the dog. As to this issue, the testimony of Mrs. Armstrong is deemed more credible. In regard to the declawing of her dog, Mrs. Armstrong also contacted another veterinarian, Dr. Robert Titus, at the Kingsway Animal Clinic, Brandon, Florida, to whom Mrs. Armstrong had, on occasion, previously taken her pets. Mrs. Armstrong inquired of the cost of the declawing procedure. Dr. Titus does not perform declawing procedures on healthy dogs, and told his staff to quote Mrs. Armstrong a price in excess of $285 to discourage her from seeking the procedure. After considering the price quoted by Respondent, Mrs. Armstrong made an appointment with Respondent to perform the declawing procedure on January 12, 1995. A declawing procedure on a healthy dog is not a normal or routine surgical procedure. This surgical procedure, which is more complicated in an animal with nonretractible claws, involves the removal of the third phalange, which is either a total or subtotal removal of the nail and the complete nail bed along the bone. The procedure results in severe pain in the dog which usually lasts for two or three weeks during which the dog should be medicated and closely examined for possible infection. Declawing of a healthy dog is rarely performed, although one text, General Small Animal Surgery, edited by Ira M. Gourley, D.V.M. and Philip B. Vaseur, D.V.M., which is an accepted treatise used in the practice of veterinary medicine, states that an onychectomy on a healthy dog is indicated to prevent digging or property damage. Performing an onychectomy is not completely prohibited under all circumstances in the practice of veterinary medicine. Under the terms and conditions of the Final Order, Respondent was restricted from performing any surgery other than "normal and routine spays, neuters, croppings and treatment of abscesses" without obtaining a second opinion by a licensed veterinarian approved by the Board. The Final Order did not, however, require Respondent to abide by the second opinion. Respondent consulted by telephone with her direct monitor, Dr. Adey, regarding performing the declawing procedure. Dr. Adey strongly advised Respondent against performing the procedure. After "shouting out" his objection to the procedure, Dr. Adey, nonetheless, reviewed with Respondent the appropriate incisions to be made in performing the surgery. Dr. Adey did not forbid Respondent from performing the surgery because he did not believe that as Respondent's direct monitor he had the authority to do so. Respondent also discussed the declawing procedure with her indirect monitor, Dr. Piniero. Dr. Piniero advised Respondent that he did not believe in performing a declawing procedure on a healthy dog, and that in his opinion, such surgery was indicated only when there was a medical basis for the procedure, such as a cancer or a tumor present in the paw. Despite the advice of her direct and indirect monitors, Respondent on January 12, 1995, performed an onychectomy on Mrs. Armstrong's dog. Dr. Piniero was present at Respondent's clinic when Respondent began the operation; however, Dr. Piniero did not supervise, or otherwise participate in the surgery, and left before the surgery was completed. Respondent had not previously performed an onychectomy. The surgery on the Armstrong dog lasted more than two hours. Following the surgery, the Armstrong dog remained at Respondent's clinic. The next day, January 13, 1995, Amy Armstrong called Respondent and was informed that her dog was doing well, but would be in severe pain for a while and that the recovery period would be approximately two weeks. On January 14, 1995, Mrs. Armstrong's husband visited the dog at Respondent's clinic. The dog's paws were heavily bandaged, but the dog was able to ambulate at that time. On Sunday, January 15, 1995, the Mr. Armstrong brought the dog home. At the time the dog was released, Respondent prescribed an antibiotic, Keflex, for the dog. Mrs. Armstrong spoke to Respondent by telephone, and was told to bring the dog back the following Wednesday or Thursday, to change the bandages. Respondent also informed Mrs. Armstrong that there would be additional charges for the care of the dog in excess of the original price of $65.00 for the surgical procedure. Mrs. Armstrong did not agree to the additional charges. When the dog returned home, Mrs. Armstrong became very upset. The dog was in severe pain, and could not ambulate. That evening Respondent called Mrs. Armstrong to check on the dog. Mrs. Armstrong expressed her concern for the dog's painful condition, and Respondent suggested the dog be given aspirin or Ascriptin. On Monday morning, January 16, 1995, Mrs. Armstrong observed a thick substance which she believed to be blood oozing through the dog's heavy bandages. Mrs. Armstrong became extremely concerned. She took the dog back to Dr. Robert Titus, at the Kingsway Animal Clinic, in Brandon, Florida. Dr. Titus observed what was determined to be serum seepage coming through the bandages on the dog's front paws, and noticed a "foul odor" similar to rotten meat coming from the paws. At that time, the dog's temperature was elevated to 104 degrees from a normal range of 100-102 degrees. Dr. Titus attempted to remove the bandages; however, because of the dog's severe pain, Dr. Titus was required to anesthetize the Armstrong dog in order to remove the bandages. Dr. Titus observed that the dog's front paws were swollen more than twice the normal size, and found serum leakage and serum blisters over the paws. Serum is a bodily fluid typically found at sites of inflammation. Dr. Titus also noticed a dehissing, or coming apart, of some sutures. Dr. Titus cleansed the surgical areas with antiseptics and antibiotics, and then rebandaged the paws. Dr. Titus sprayed an alum solution on the bandages to deter the dog from chewing on them. Dr. Titus also prescribed a systemic antibiotic (tetracycline) to fight any infection which might have been present, and also Tylenol 3 for pain. Dr. Titus sent the dog home with instructions to keep the dog as comfortable as possible, and to bring the dog back in two days to again cleanse the paws and rebandage them. On January 18, 1995, Mrs. Armstrong brought the dog back to Dr. Titus. The dog still was in severe pain, and the dog's temperature remained elevated at 104 degrees. Dr. Titus again was required to anesthetize the dog to remove the bandages. Dr. Titus observed more serum seepage, and cleansed the surgical areas, rebandaged the paws, and sent the dog home with the same instructions regarding care and medication. On January 20, 1995, Mrs. Armstrong called Dr. Titus to inform him that the dog was still having difficulty walking. Dr. Titus advised Mrs. Armstrong to continue the same care and medication procedures for a few more days, and then to bring the dog back. On January 23, 1995, Dr. Titus again examined the dog. The dog's temperature was 101 degrees. Dr. Titus cleansed and again rebandaged the dog's paws. At that time the swelling was greatly diminished, and no serum leakage was observed. The paws appeared to be healing, and Dr. Titus discontinued the antibiotics and pain medication. Mrs. Armstrong was informed when to take the bandages off, and to return to Dr. Titus only if the dog showed severe pain. Dr. Titus expressed no opinion as to whether the surgery on the Armstrong dog was performed in accordance with the standard of care acceptable in the practice of veterinary medicine. On January 27, 1995, Mrs. Armstrong called Dr. Titus to inform him that the dog was doing well, and was able to run. The Armstrong dog has now recovered from the surgery; however, the declawing procedure on the dog's front paws has not stopped the digging problem. Mr. and Mrs. Armstrong have kept the dog. Dr. Gary W. Ellison, Associate Professor at the College of Veterinary Medicine of the University of Florida, was qualified as an expert witness for Petitioner. Dr. Ellison testified that an onychectomy is not a common veterinary procedure. Unlike the declawing of an animal with retractable claws, such as a cat, declawing of an animal with nonretractible is a more complicated and difficult procedure and, in Dr. Ellison's opinion, should not be performed unless there is a medical necessity. Dr. Ellison, after reviewing the records, and hearing the testimony in this case, concluded that Respondent did not comply with the minimum standard of care and treatment in performing an onychectomy on the Armstrong dog. Specifically, Dr. Ellison testified that Respondent failed to properly consult with the owner, failed to recommend alternatives to the procedure, and should not have performed the onychectomy except for medically necessary reasons. Dr. Ellison further opined that Respondent was not prepared to do the surgery, which he considered improperly done, resulting in abnormal swelling, bleeding and infection of the paws. Dr. Ellison, however, acknowledged that General Small Animal Surgery, edited by Ira M. Gourley and Philip Vaseur, is an accepted treatise used in the practice of veterinary medicine, and that this treatise states that onychectomy is indicated to prevent digging and property damage. Dr. Ellison also acknowledged that the medication prescribed by Respondent for the Armstrong dog was acceptable under the circumstances, and that it is not unexpected for an onychectomy to produce swelling, bleeding and potential infection. Dr. Richard Goldston, a veterinarian qualified as an expert witness for Respondent, testified that in his opinion performing an onychectomy on a healthy dog was not an acceptable procedure unless there was no alternative and the dog would be euthanized. Dr. Goldston also recognized that accepted treatises state that an onychectomy is indicated to prevent digging. Dr. Goldston further testified that even a properly performed onychectomy produces inflammation and swelling, and that there would be a likelihood of infection. According to Dr. Goldston, normal post-operative recovery is two or three weeks, and a recovery period of less than two weeks would be considered successful. The recovery period of the Armstrong dog was acceptable. Another veterinarian, Dr. Edward Dunham, testified that in his twenty- five years of practice, he had performed an onychectomy on three occasions, and that while the procedure was not common, the procedure did not violate the ethical standards of the practice of veterinary medicine. Dr. Dunham further testified that he would not perform an onychectomy again.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that: As to Count I, that Respondent's license be SUSPENDED for six months, that Respondent's probation be continued for five (5) years, with additional requirements for direct supervision. It is further recommended that Counts II and III be DISMISSED. RECOMMENDED in Tallahassee, Leon County, Florida, this 30th day of June, 1995. RICHARD HIXSON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of June, 1995. APPENDIX As to Petitioner's Proposed Findings of Fact 1. - 30. Accepted and incorporated. Rejected as irrelevant. - 54. Accepted and incorporated. 55. - 61. Accepted and incorporated. Accepted, but Dr. Ellison further acknowledged that there is no prohibition on the procedure. Accepted, but Dr. Ellison further testified there is no prohibition on the procedure. Accepted, but Dr. Goldston and Dr. Dunham further testified that they had performed declawing operations, and that there is no prohibition on performing the procedure. As to Respondent's Proposed Findings of Fact 1. - 7. Accepted and incorporated. Accepted, except for second sentence which is rejected as irrelevant. - 11. Accepted and incorporated. Accepted as to the number of hours. Accepted and incorporated. Accepted to the extent that on one occasion Dr. Adey gave Respondent an assignment. Accepted as to dates cancelled, rejected as to reasonableness of effort. Rejected as not supported by the evidence. Accepted and incorporated. Accepted and incorporated. Accepted, except for second sentence. and 21. Accepted and incorporated. Rejected. - 28. Accepted and incorporated. Accepted, except date is October 25, 1994. Rejected, the initial inquiry was regarding the surgery and fee. Accepted and incorporated. Accepted to the extent that Mrs. Armstrong elected not to pursue nail filing. and 34. Rejected. 35. - 38. Accepted. Accepted except Dr. Ellison testified that the resultant swelling was abnormal. Rejected. - 44. Accepted. Accepted, except as noted in finding 39. and 47. Accepted. Accepted, to the extent that there are other publications on onychectomies. - 53. Accepted. Accepted, except that Dr. Dunham testified he does not now perform the procedure. Accepted, except that infection is a possibility, not an expectation. Accepted, except as to date. Rejected. See Finding 30. Accepted. Accepted. See Finding 32. and 61. Rejected. 62. - 65. Accepted. See Finding 39. Accepted. Accepted, except that Dr. Piniero left before the surgery concluded. Rejected. - 73. Accepted. See Finding 45. and 76. Accepted. See Finding 48. - 82. Accepted. See Finding 54. See Finding 55. Accepted, to the extent that Dr. Piniero responded in a letter to DBPR that Respondent was qualified. Accepted. COPIES FURNISHED: Susan E. Lindgard, Esquire James E. Manning, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Edward M. Brennan, Esquire 100 South Ashley Drive, Suite 1600 Post Office Box 3429 Tampa, Florida 33601-3429 Dr. Marianne T. Keim 800 West Kennedy Boulevard Tampa, Florida 33606 Lynda L. Goodgame General Counsel Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Susan Foster Board of Veterinary Medicine 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Whether Respondent's veterinary license should be disciplined.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed doctor of veterinary medicine, having been issued License No. VM 0003845 by the Board of Veterinary Medicine on July 1, 1985. During his career, Respondent has taught at the University of Florida veterinary school, developed patents in the field of veterinary medicine, performed research in the veterinary field, and become certified in veterinary laser surgery. Because he does research and because his wife/veterinary partner frequently provides follow-up care, Respondent is a meticulous record keeper. Precious was a grossly obese, 11-year-old, female English bulldog. She was owned by the Salters and had been previously treated by the Respondent. In fact, the Salters were friends of some of the clinic's staff who treated her. On July 7, 1999, the Salters brought Precious to Respondent for emergency treatment. Precious was experiencing respiratory distress and had cyanotic mucous membranes indicating a lack of oxygen. Her condition was growing worse and life-threatening. Because of the emergency nature of Precious' condition, Respondent immediately began a physical examination of the dog to determine what was causing her inability to breath properly. At the same time, Respondent began a series of notes on Precious' record of treatment and examination. The notes contained in the record of treatment and examination are clearly preliminary and hurried. Some of the writing is that of other clinic staff. Most of the writing is Respondent's. The notes are consistent with the frenetic nature of the emergency. They included a checklist of various possible tests and treatments to be performed by Respondent or clinic staff, general impressions of the dogs physical condition, and possible medical causes to be ruled in or out (that is, tonsilar lymph nodes, soft palette resection, and tonsillectomy). The record, while lacking some information, does contain sufficient information to reflect Precious' condition, diagnosis, and course of treatment. Throughout the time Precious was at the clinic, the clinic staff or Respondent performed the various tests and treatments listed in the record of treatment. As each task was completed the task was checked off the checklist and results filled in, if possible. If it was not possible to fill in the results on the record of treatment, results would be noted by another method such as medical reports, logs, or note cards. In fact, Respondent makes notes regarding treatment, results, etc., of a particular animal on index cards because the larger, more formal veterinary record of an animal is often not carried around to the different places where an animal may be located in the clinic. The index cards are small and can be carried in Respondent's shirt pocket. Use of the cards was the record keeping procedure taught to him while in veterinary school at the University of Florida and is his primary contemporaneous record for an animal. Information on the note cards would later be recorded in an animal's permanent file. Respondent followed this process with Precious. However, Respondent's note cards for Precious are missing. Respondent's entries in Precious' medical record reflect some of the measures that were taken to save Precious' life. One such measure was to place Precious on an IV of lactated ringer solution (LRS in the record of treatment). However, no amount of solution was listed because when the note was made, placement of the IV was a task to be done, and the amount of solution would have been initially recorded on the index cards for Precious once treatment was complete for later entry in Precious' permanent record. Indeed the amount of solution was written on Respondent's note cards for Precious. The physical examination of Precious revealed that she had aspirated part of her mouth tissue in the epiglottis pharyngeal area of her mouth. The loose tissue appeared to be scar tissue from a previous operation or a tumor. Such loose tissue is not uncommon in English bulldogs and was exacerbated in Precious due to her obesity. Because the tissue was blocking her airway, Precious was put under anesthesia for placement of an intratrachial tube to open an airway, to complete a non- invasive ultrasound examination and to begin preparation for removal of the loose tissue. Information on the type and amount of anesthesia was kept in the controlled substances medication list and a missing anesthesia log for heart and respiration, as well as the missing index cards kept by Respondent. After placement of the tube inside Precious' airway, her condition began to improve. However, she was still in a very critical, life-threatening condition. At 2:00 p.m. Precious went into cardiac arrest. Epinephrine and Doxapram, medications used to control cardiac arrest, were administered and cardio-pulmonary resuscitation was performed. The amounts of the Epinephrine and Doxapram were not recorded in the record of treatment but were recorded on the missing note cards. Precious recovered from her cardiac arrest and was somewhat responsive to external stimuli. However, she was not aware of her surroundings and had dilated pupils. She did not recover from the coma and, subsequently, was euthanized with the owners permission. Again the amount of euthanasia solution was written on the Respondent's index cards. Because of the monitoring Precious required during the day and the other requirements of other patients at the clinic, Respondent placed Precious' permanent veterinary record and his index card notes on his desk so that he could permanently record the information in Precious' permanent file. Respondent could not finalize Precious' record until two days later because of the work load at the clinic. However, when Respondent went to finalize the record, he discovered that Precious' veterinary record, along with his index card notes and various logs and reports regarding Precious, had been stolen from his office. The office and premises were thoroughly searched by Respondent, his wife, and clinic staff. No records were found. Approximately three weeks later, part of the veterinary record reappeared at the clinic. However, it was apparent that some records in the recovered file were altered or were missing. The 3 x 5 index cards of Respondent's notes were missing. The dog owner's standard consent form for procedures on July 7, 1999, was missing and the original anesthesia log was missing. The anesthesia log, which was returned with the file, was prepared by another person who did not perform clinical tasks at the clinic. The log did not contain entries for heart and respiration which had been made by either Respondent or his assistant, Ric Berlinski. For unknown reasons a false log had been substituted for the original log by whoever had taken or had the file during its absence from the clinic. Respondent reasonably did not trust his memory to complete the veterinary records on Precious. Respondent made a decision not to change the recovered records in any manner lest he be accused of altering the records knowing that other parties may have copied the records in addition to removing and altering certain records. He felt not adding to the records was reasonable since there was no future need for the records to treat the deceased animal, the record would not be used in any research and had no educational purpose. In fact, neither the statute nor rules of the Board contain any guidance on the action a veterinarian should take under circumstances where a veterinarian, through no fault of his own such as theft, fire or disaster, is prevented from completing or maintaining an animal's veterinarian record. In response to the Salters' complaint in regard to Precious' treatment, Respondent was requested to provide Richard Ward, the investigator for the Department of Business and Professional Regulation, with records relating to Respondent's treatment of Precious. Respondent failed to inform Mr. Ward that Respondent believed the records had been tampered with or that he believed the medical records had been stolen. Respondent also failed to provide Mr. Ward with the controlled substance log containing the entries relating to the treatment of Precious because he did not ask for it. At the time, given the complaint, Respondent did not wish to and did not think it prudent to speak with the Department's investigator absent the advice of legal counsel. Therefore, he did not tell the investigator about the problems with the record. Respondent did not mislead the investigator and did not violate any statute or rule of the Board.
Recommendation Base on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order finding Respondent not guilty and dismissing the Administrative Complaint. DONE AND ENTERED this 4th day of September, 2002, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2002. COPIES FURNISHED: C. Robert Edewaard, Esquire Post Office Box 2297 Gainesville, Florida 32602 Tiffany A. Short, Esquire Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Sherry Landrum, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Respondent's license to practice veterinary medicine should be revoked or suspended for alleged violation 474.14(1), 474.15, and 474.31 (1), and (6), Florida Statutes. This case was consolidated by order of the Hearing Officer issued December 5, 1975, with Florida Board of Veterinary Medicine vs. Harold M. McGee, D.V.M., Docket No. 751926 because the cases involve similar issues of law and fact. At the hearing, Respondent was advised of his right to employ legal counsel at his own expense to represent him. He elected to appear in his own behalf. He was then advised of his rights under the Administrative Procedure Act, including the right to testify in his own behalf, if he so desired. He indicated that he understood these rights.
Findings Of Fact Respondent was licensed by the Board of Veterinary Medicine on July 27, 1975 and was not licensed on March 4, 1975. On March 4, 1975 Respondent was employed by Dr. Harold M. McGee, D.V.M., at his place of business located at 3520 Northwest 36th Street, Miami, Florida. On March 4, 1975, Chery Lynn Correa, along with Dr. Calvin Dugas, D.V.M., both employees of the Knowles Animal Hospital in Miami took a Doberman Pinscher to Dr. McGee's clinic. Their visit was prompted by a request of their employer, Dr. Knowles, who had asked them to check a complaint that there were unlicensed veterinarians working for Dr. McGee. Without disclosing their purpose, Correa informed the receptionist that she had brought the dog to get rabies and distemper shots and to have some bumps on its neck checked. She and Dr. Dugas were referred to Respondent in the treatment room. He checked the dog and told them that the bumps were due to an improper diet. He then administered inoculations for rabies and distemper and checked the animal for worms. He also looked at the dog's throat and diagnosed tonsilitis for which he prescribed tetracycline pills. He also procured liquid shampoo called Tergex for a skin problem and gave instructions to bathe the dog once a week. He gave two more injections of antibiotics and cortisone. The receptionist signed Dr. McGee's name to the certificate of rabies vaccination and to a form for issuance of a Dade County dog tag. Respondent signed Dr. McGee's name to a Canine Interstate Health Certificate reflecting the administration of the inoculations. Correa paid the bill of $43.00 and then she and Dr. Dugas departed. During the time they were at the clinic, they did not see Dr. McGee on the premises (Testimony of Correa, Dugas, Petitioner's Exhibit 3). However, Dr. McGee was in the back office at the time in question suffering from a headache and had asked his receptionist to have Respondent give routine shots to animals during the day and only call him if a diagnosis was necessary. In view of Respondent's lack of a Florida license, Dr. McGee did not permit him to diagnose, treat, or incise skin of an animal without supervision. In accordance with these directions, Respondent always checked with Dr. McGee on a diagnosis and the latter would then prescribe the proper treatment. Respondent followed this procedure with respect to the dog brought to the clinic by Correa and received instructions from Dr. McGee as to the treatment that was thereafter performed. Respondent was not licensed by the Florida Board of Veterinary Medicine until July 27, 1975. Dr. McGee professed the belief at the hearing that since secretaries could sign distemper and rabies certificates, he felt Dr. Mayo could sign an interstate health certificate although he normally signed such documents himself. Respondent testified that he had worked for the local humane society for over nine years and, during that period, had signed his own name to interstate health certificates by authorization of the board of directors of the society. The receptionist took the interstate health certificate in question to Respondent to sign because he had administered the shots to the animal. She was unaware of the fact that he was unlicensed (Testimony of McGee, Mayo, Uriquize, Petitioner's Exhibit 2). Respondent was head of the Veterinary Services of the Cuban rebel army at the time he came to the United States. He has been a veterinarian since 1948. He is active in the Cuban community of Miami and enjoys a good reputation for truth and veracity in the community (Testimony of Mayo, Reboso).
Recommendation That the charges against Cristobal M. Gonzalez Mayo, D.V.M., be dismissed. DONE and ENTERED day of February, 1976 in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings The Carlton Building Room 530 Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Ronald C. LaFace, Esquire 101 East College Avenue P.O. Box 1752 Tallahassee, Florida Dr. Cristobal M. Gonzalez Mayo 971-A Southwest 8th Street Miami, Florida 33130
