07-002415PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Philip Jerome Aleong, D.V.M. Status: Closed Recommended Order on Wednesday, January 23, 2008.

Summary: Reprimand and $1,000 fine for veterinarian who failed to maintain medical record of a pre-purchase examination for not less than three years after date of last entry based on Board`s guidelines and mitigating factors.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 07-2415PL

)

PHILIP JEROME ALEONG, D.V.M., )

)

Respondent. )

__________________________________)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on September 25, 2007, by video

teleconference with sites in Lauderdale Lakes and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Drew F. Winters, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Bradford J. Beilly, Esquire

Bradford J. Beilly, P.A.

1144 Southeast Third Avenue

Fort Lauderdale, Florida 33316

STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the

allegations contained in the Administrative Complaint filed

against him, and, if so, what disciplinary action should be

taken against him, if any.

PRELIMINARY STATEMENT

On September 14, 2006, Petitioner Department of Business

and Professional Regulation, Board of Veterinary Medicine, filed

an Administrative Complaint against Respondent Philip J. Aleong,

D.V.M., alleging that he had violated two statutes regulating

his conduct as a veterinarian in the State of Florida.

Respondent timely requested an administrative hearing regarding

the allegations in that Administrative Complaint, and this cause

was transferred to the Division of Administrative Hearings to

conduct the evidentiary proceeding.

Petitioner presented the testimony of John A. Damico and

Faith E. Hughes, D.V.M. The Respondent testified on his own

behalf. Additionally, Petitioner's Exhibits numbered 1-4 and 6

and Respondent's Exhibits numbered 1 and 2 were admitted in

evidence.

The Transcript of the final hearing was filed on

November 9, 2007. Both parties requested 20 days from the

filing of the transcript by which to file their proposed

recommended orders. Petitioner, however, filed its proposed

recommended order on December 10, 2007. On December 11,

Respondent filed a Motion for Extension of Time to File Proposed

Final [sic] Order, which Motion was granted. Respondent filed

his proposed recommended order on December 21, 2007. Both

proposed recommended orders have been considered in the entry of

this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent Philip J.

Aleong has been licensed as a veterinarian in the State of

Florida, having been issued license number VM 6466.

2. Respondent has performed an average of 200 pre-purchase

examinations of horses per year for the last ten years.

3. In April 2003, John A. Damico, through his trainer

Buddy Edwards, requested Respondent to perform a pre-purchase

examination of a 2-year-old thoroughbred race horse identified

with OBS Hip #512 at the Ocala Breeders Sale. Respondent did

so.

4. After the pre-purchase examination was performed,

Damico purchased the race horse identified as OBS Hip #512 and

named the horse "C. Brooke Run."

5. The pre-purchase examination performed by Respondent

consisted of an endoscopic evaluation, an evaluation of the

horse jogging, and an examination of radiographs taken by

Respondent of C. Brooke Run.

6. As a horse in a pre-purchase examination has a limited

veterinarian/patient relationship, limited records are kept by

the examining veterinarian. For the purpose of a pre-purchase

examination, sufficient medical records could consist of the

horse's Hip number, the sale date of the horse, and a few words

regarding the endoscopic examination of the horse, the short

jogging of the horse, and the results of the radiographs taken

of the horse. It is sufficient, therefore, if appropriate that

the medical records simply note that the endoscopic examination

and the jogging were normal and the radiographs showed no

abnormalities.

7. The average time spent reviewing radiographs taken at a

pre-purchase examination is less than 30 seconds per film.

8. During his pre-purchase examination of C. Brooke Run,

Respondent took the necessary number of radiographs to perform a

proper examination, including four radiographs of C. Brooke

Run's left knee. During his pre-purchase examination of C.

Brooke Run, Respondent contemporaneously created a medical

record by noting in a notebook the results of the pre-purchase

examination.

9. After examining the radiographs taken, observing the

horse jog, and performing an endoscopic examination of C. Brooke

Run, Respondent determined that the horse had no medical

problems or injuries.

10. Between April 2003, when the pre-purchase examination

was performed, and September 10, 2003, Damico, the horse's

owner, raced the horse on July 20, August 22, and August 29. In

addition to racing the horse three times, the horse's trainer

worked out the horse at least six times. The trainer would not

have worked out the horse or allowed it to race if he believed

the horse had an injury.

11. On September 10, 2003, C. Brooke Run suffered a

"breakdown" that was determined to be caused by fractures in the

horse's left knee. After the breakdown, Damico alleged that

Respondent should have detected the fractures in the horse's

left knee five months earlier during the pre-purchase

examination performed by Respondent and that, since Respondent

did not, Damico was damaged.

12. Without admitting any liability or negligence in

performing the April 2003 pre-purchase examination of C. Brooke

Run, Respondent, through his insurance carrier, paid Damico in

full for all alleged damages incurred by Damico as a result of

C. Brooke Run "breaking down."

13. Petitioner's expert witness opined that any injury

sustained by C. Brooke Run may very well have been sustained

after the pre-purchase examination performed by Respondent and

that the radiographs taken of C. Brooke Run might or might not

have revealed any medical problems or injuries.

14. Respondent cannot locate his notebook where he created

his medical record on C. Brooke Run at the time of the pre-

purchase examination. Further, by February 10, 2005, he was

only able to produce an invoice for services rendered for the

radiographs of the horse's knees, hocks, and front ankles, and

for the endoscopic examination he performed.

15. After the horse broke down, Damico requested that

Respondent provide him with the radiographs Respondent took on

C. Brooke Run. Respondent's secretary pulled out from the files

the original radiographs and sent them to Damico, who wrote on

the envelope that he received 22 radiographs. After showing

those original radiographs to his local veterinarian, Damico

forwarded them to the University of Florida. After the envelope

was returned to Damico from there, he then sent those originals

to Respondent's insurance company, assumedly as part of his

claim. No evidence was presented as to where the radiographs

traveled from there.

16. By the time of the final hearing in this cause, the

envelope still contained 22 radiographs. However, two of them

were for a different horse than C. Brooke Run, and one of them

was too dark to read.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

18. The Department seeks to take disciplinary action

against Respondent in this proceeding. The burden of proof,

therefore, is on the Department, and the Department must prove

the allegations in its Administrative Complaint by clear and

convincing evidence. Dept. of Banking & Finance, Division of

Securities & Investor Protection v. Osborne Stern & Co. , 670

So. 2d 932 (Fla. 1996).

19. The Administrative Complaint filed in this cause

contains two counts. Count One charges Respondent with

violating Section 474.214(1)(r), Florida Statutes, by failing to

practice medicine with that level of care, skill, and treatment

recognized by a reasonably prudent veterinarian as being

acceptable under similar conditions and circumstances. The

Department alleges that Respondent fell below the standard of

care in that he failed to take the required number of

radiographs of C. Brooke Run.

20. Respondent and the Department's witness agree that the

minimum number of radiographs for a pre-purchase evaluation of a

horse's health, fitness, or soundness is 22: 4 for each knee, 4

for each fetlock, and 3 for each hock. The Respondent, who is a

credible witness, testified that he always takes that number of

radiographs in his pre-purchase examinations and that he did so

in this instance. On the other hand, the Department's only

evidence that Respondent did not take 22 radiographs of C.

Brooke Run is that although the envelope contains 22

radiographs, two are for a different horse, and one is not

readable. The Department concludes, therefore, that Respondent

took fewer than 22 radiographs of C. Brooke Run and, therefore,

did not perform a complete examination.

21. That interpretation of the envelope's contents is only

one of a number of possible interpretations. Because the

envelope passed through the hands of an unknown number of

people, including the owner of the horse who was making a claim

against Respondent's insurance carrier for damages, a

university, and an insurance company before reaching the

Department in some undisclosed fashion, the Department has

failed to present clear and convincing evidence that Respondent

deviated from his routine and failed to take a sufficient number

of radiographs. The Department has, therefore, failed to prove

the allegations in Count One of the Administrative Complaint.

22. Count Two alleges that Respondent violated Section

474.214(1)(ee) by failing to keep contemporaneously-written

medical records as required by rule of the Board of Veterinary

Medicine. Florida Administrative Code Rule 61G18-18.002 governs

the maintenance of medical records. Subsection (1) of that Rule

requires that an individual medical record on every patient

examined be retained for not less than three years after the

date of the last entry. Subsections (3) and (4) of that Rule

specify the contents of medical records, and Subsection (4)

requires that radiographs be maintained as part of the medical

record.

23. The Department has proven by clear and convincing

evidence that Respondent failed to maintain a medical record on

C. Brooke Run for a period of not less than three years.

Respondent cannot locate his written medical record of his

examination, and the original radiographs Respondent took of C.

Brooke Run were sent by his office to the horse's owner.

Respondent has violated Florida Administrative Code Rule 61G18-

18.002(1) and (4) and has, therefore, violated Section

474.214(1)(ee), Florida Statutes.

24. The Department did not, however, prove that Respondent

violated Florida Administrative Code Rule 61G18-18.002(3), which

specifies what information should be contained in the medical

record. Since there is no medical record in existence at this

time, it cannot be ascertained what was or was not in it.

25. In its Administrative Complaint, during its

presentation at hearing, and in Petitioner's Proposed

Recommended Order the Department overlaps its factual

allegations and statutory and rule citations. For example, the

Department argues that the medical record was incomplete since

it did not contain certain information, Subsections (3) and (4)

of the Rule, and that the medical record does not exist,

Subsection (4) of the Rule. Similarly, the Department argues

that Respondent violated the standard of care statutory

requirement, Section 474.214(1)(r), by violating the record-

keeping statutory requirement, Section 474.214(1)(ee). Such

overlapping of statutory or rule prohibitions is not

permissible. Barr v. Dept. of Health , 32 Fla. L. Weekly 923

(1st DCA 2007). Thus, Respondent's record-keeping violation is

not a standard of care violation, and Respondent's lack of a

medical record of his evaluation of C. Brooke Run is not an

incomplete-record violation.

26. Section 474.214(2), Florida Statutes, establishes the

types of penalties the Board may assess upon a finding that a

veterinarian has violated any of the prohibitions found in

Subsection (1). In Petitioner's Proposed Recommended Order the

Department suggests that an appropriate penalty in this case is

a fine in the amount of $1,500, investigative costs in the

amount of $917.49, probation for 18 months, and a 30-day

suspension of Respondent's license. The Department fails to

identify which penalty applies to which Count in its

Administrative Complaint, but merely assumes that it was

successful in proving everything alleged. The Department also

fails to cite or rely on the Board's Disciplinary Guideline

found in Florida Administrative Code Rule 61G18-30.001. Lastly,

although the Department provides for the first time a figure

alleged to represent investigative costs, no evidence regarding

any investigative costs, or the amount thereof, was offered

during the evidentiary hearing. Therefore, none will be awarded

in this proceeding.

27. Florida Administrative Code Rule 61G18-30.001(2)(ee)

provides that a failure to keep contemporaneously-written

medical records as required by rule of the Board carries a usual

penalty of a reprimand, plus 6-months probation, a fine of

$1,500, and investigative costs. Further, Subsection (4) of

that Rule sets forth the aggravating and mitigating factors that

must be considered in assessing a penalty.

28. The Department did introduce in evidence three prior

Final Orders in disciplinary actions against Respondent. One

involved the administration of a certain drug to a certain horse

and resulted in a stipulated settlement. One involved failing

to report to the Board action taken by the Stewards at

Gulfstream Park and resulted in a stipulated settlement. The

third involved failing to timely remit payment pursuant to a

Final Order, was tried before the Division of Administrative

Hearings, and resulted in a $2,000 administrative fine. All

three involve violations different from the single violation

proven in this case.

29. On the other hand, Respondent's Proposed Recommended

Order argues the specific mitigating factors applicable to this

case which the Board must consider in imposing disciplinary

action in this proceeding. First, Respondent's failure to

maintain for three years his medical record of C. Brooke Run's

pre-purchase examination did not pose a danger to the public.

Second, no actual damage was sustained by the horse's owner who

collected all of his damages from Respondent's insurance company

although there is no evidence that the horse's knee was injured

before the pre-purchase examination rather than after the

examination. Third, there has been no pecuniary gain to the

Respondent from failing to maintain C. Brooke Run's medical

record.

30. The several mitigating factors present in this case,

considered together with the Board's own disciplinary

guidelines, suggest that the appropriate discipline in this case

should be issuance of a reprimand and a fine of $1,000.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding

Respondent not guilty of the allegations in Count One, guilty of

the allegations in Count Two of the Administrative Complaint,

issuing a reprimand, and imposing an administrative fine of

$1,000 to be paid by a date certain.

DONE AND ENTERED this 23rd day of January, 2008, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of January, 2008.

COPIES FURNISHED :

Bradford J. Beilly, Esquire

Bradford J. Beilly, P.A.

1144 Southeast Third Avenue

Fort Lauderdale, Florida 33316

Drew F. Winters, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Juanita Chastain, Executive Director

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Ned Luczynski, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.