08-001606PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Thandaveshwar Mysore, D.V.M.
 Status: Closed
Recommended Order on Monday, January 12, 2009.


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Summary: Respondent violated standard of care by leaing hairs inside incision, which led to necrotic tissue and also failed keep adequate records.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF BUSINESS AND )

13PROFESSIONAL REGULATION, BOARD )

17OF VETERINARY MEDICINE, )

21)

22Petitioner, )

24)

25vs. ) Case No. 08-1606PL

30)

31THANDAVESHWAR MYSORE, D.V.M., )

35)

36Respondent. )

38)

39RECOMMENDED ORDER

41Pursuant to notice, a final hearing was held in this case

52before Larry J. Sartin, an Administrative Law Judge of the

62Division of Administrative Hearings, on November 4, 2008, by

71video teleconference at sites in West Palm Beach and

80Tallahassee, Florida.

82APPEARANCES

83For Petitioner: Elizabeth Duffy

87Assistant General Counsel

90Sherria Williams

92Qualified Representative

94Department of Business and

98Professional Regulation

1001940 North Monroe Street

104Tallahassee, Florida 32399-2202

107For Respondent: Martin McDonnell, Esquire

112Rutledge, Ecenia & Purnell, P.A.

117215 South Monroe Street, Suite 420

123Tallahassee, Florida 32301

126STATEMENT OF THE ISSUES

130The issues in this case are whether the Respondent,

139Thandaveshwar Mysore, D.V.M., committed the violations alleged

146in an Administrative Complaint, DPBR Case Number 2005-005136,

154filed by the Petitioner Department of Business and Professional

163Regulation on October 19, 2006, and, if so, the penalty that

174should be imposed.

177PRELIMINARY STATEMENT

179On October 19, 2006, a two-count Administrative Complaint

187was filed with the Department of Business and Professional

196Regulation in DPBR Case No. 2005-005136, alleging that

204Respondent had committed violations of Chapter 474, Florida

212Statutes (2004). In particular, Petitioner alleged that

219Respondent, a Florida licensed veterinarian had violated the

227following provisions of Florida law: Section 474.214(1)(r),

234Florida Statutes (2004)(Count Two).

238On or about October 27, 2006, Respondent filed an Election

248of Rights Form requesting a formal hearing to contest the

258allegations of fact contained in the Administrative Complaint.

266The Administrative Complaint and Respondent's request for

273hearing were filed with the Division of Administrative Hearings

282on April 1, 2008, with a request that the matter be assigned to

295an administrative law judge. The request was designated DOAH

304Case number 08-1606PL and was assigned to the undersigned.

313The final hearing of this matter was initially scheduled

322for June 5, 2008. The final hearing was subsequently continued,

332several times at the request of the parties. By Amended Order

343of Hearing by Video Teleconference entered October 28, 2008, the

353final hearing was scheduled for November 4, 2008.

361At the commencement of the final hearing, the parties filed

371a Joint Prehearing Stipulation. The Joint Prehearing

378Stipulation contains certain “Admitted Facts.” To the extent

386relevant, those facts have been included in this Recommended

395Order.

396During the final hearing, Petitioner presented the

403testimony of Ted Brinkman, D.V.M., Rita Gruskin, and Jerry Alan

413Greene, D.V.M. Petitioner's Exhibits numbered 1 through 4 were

422admitted. Respondent testified in his own behalf and presented

431the testimony of Ricky Joe King and Alberta Finocio Cruz.

441Respondent’s Exhibits numbered 1 and 2 were admitted.

449Respondent’s Exhibit 1 was not filed. That exhibit, however,

458was described during the hearing to the extent relevant to this

469matter. Three Joint Exhibits were admitted.

475A one-volume Transcript of the final hearing was filed with

485the Division of Administrative Hearings on November 26, 2008.

494By agreement of the parties, proposed recommended orders were to

504be filed on or before December 29, 2008. A Notice of Filing

516Transcript was entered informing the parties of the filing of

526the Transcript and due date for proposed recommended orders.

535Respondent filed Respondent, Thandaveshwar Mysore’s

540Proposed Recommended Order on December 29, 2008. Petitioner

548filed Petitioner’s Proposed Recommended Order on December 30,

5562008. On January 6, 2009, Respondent filed a Motion to Strike

567Untimely Proposed Recommended Order. Other than arguing that

575“Petitioner had an opportunity to study Respondent’s timely

583filed Proposed Recommended Order,” Respondent has not suggested

592any prejudice caused by the late filing of Petitioner’s Proposed

602Recommended Order. While Respondent is correct in asserting

610that Petitioner had an opportunity to review his proposed

619recommended order during the approximately 21 hours and 39

628minutes that passed after Respondent’s proposed recommended

635order was filed, a comparison of the two orders does not support

647the conclusion that Petitioner took advantage of this

655opportunity. Therefore, there being no showing of any prejudice

664to Respondent, the Motion is hereby denied. The proposed

673recommended orders have been fully considered in entering this

682Recommended Order.

684All references to Florida Statutes and the Florida

692Administrative Code in this Recommended Order are to the 2004

702version unless otherwise indicated.

706FINDINGS OF FACT

709A. The Parties .

7131. Petitioner, the Department of Business and Professional

721Regulation (hereinafter referred to as the "Department"), is the

731state agency charged with the duty to regulate the practice of

742veterinary medicine in Florida pursuant to Chapters 455 and 474,

752Florida Statutes.

7542. At the times material to this proceeding, Thandaveshwar

763Mysore, is and was a licensed Florida veterinarian, having been

773issued license number VM5191. Dr. Mysore has been licensed in

783Florida as a veterinarian for approximately 20 years.

7913. At the times material to this proceeding, Dr. Mysore’s

801address of record was 8904 North Military Trail, Palm Beach,

811Florida 33410.

8134. Dr. Mysore obtained his veterinary degree in 1957. He

823taught veterinary medicine as an associate and assistant

831professor for approximately 19 years prior to moving to the

841United States. He has published more than 50 articles in

851veterinary journals.

8535. At the times relevant to this matter, Dr. Mysore’s

863practice was exclusively small animals, primarily dogs and cats.

872He has successfully performed thousands of spays on dogs and

882cats without incident.

885B. Dr. Mysore’s Treatment of Ricochet .

8926. On October 13, 2004, Rita Gurskin took her nine-month

902old female dog “Ricochet” and three other animals to be spayed

913and/or neutered by Dr. Mysore.

9187. Having examined Ricochet, Dr. Mysore sedated her

926pursuant to his normal protocol and performed a routine surgical

936spay. Ricky Joe King, who has assisted Dr. Mysore on a number

948of occasions, witnessed the procedure. The surgical area was

957cleaned by Dr. Mysore with Betadine and alcohol.

9658. Mr. King has been present and assisted Dr. Mysore in

976between 70 to 100 spay procedures. He has some understanding of

987the need to ensure that a surgical area is free of debris, and,

1000in particular, hair.

10039. Both Dr. Mysore and Mr. King believed that the surgical

1014area on Ricochet had been properly cleaned and prepared.

1023Neither noticed any hair inside the incision in Ricochet at any

1034time prior to or during closure of the incision.

104310. Following the procedure, Ms. Gruskin came to

1051Dr. Mysore’s office to pick up Ricochet. While the testimony

1061concerning Ricochet’s condition at that time conflicted, the

1069more convincing testimony was that of Ms. Gruskin. According to

1079Ms. Gruskin, Ricochet was lethargic and had to be assisted out

1090of the office.

109311. While taking Ricochet to her vehicle Ms. Gruskin

1102noticed what she believed was blood oozing from the incision.

1112She pointed this out to Dr. Mysore, who assured her it was

1124normal and told her not to worry about it.

1133C. Dr. Brinkman’s Treatment of Ricochet .

114012. Following the October 13th surgical procedure,

1147Ricochet was lethargic and had little appetite. The incision

1156was inflamed and oozed blood and puss. Concerned about

1165Ricochet’s condition, Ms. Gruskin took the dog to her regular

1175veterinarian, Ted Brinkman, D.V.M., on October 15, 2004.

118313. Dr. Brinkman examined Ricochet. Ricochet’s

1189temperature was 103.6F, she had an elevated white blood count,

1199and the area around the incision area was swollen. Dr. Brinkman

1210concluded that the incision would need to be repaired but that,

1221because Ricochet’s condition was not critical and she had only

1231recently undergone the surgery, recommended that no surgery be

1240performed on Ricochet at that time. Ms. Gruskin agreed and

1250Dr. Brinkman began a treatment with antibiotics.

125714. Ms. Gruskin returned to Dr. Brinkman’s office with

1266Ricochet on October 22, 2004. Ricochet’s condition had not

1275improved. Her white cell count had risen and the incision area

1286was swollen and puffy. Dr. Brinkman recommended surgery, which

1295Ms. Gruskin agreed to.

129915. As Dr. Brinkman began to open the incision, he found

1310that the skin on the sides of the incision was not healing edge

1323to edge. The skin had rolled in on itself and Dr. Brinkman was

1336able to pull the incision apart easily. This was a result of

1348the incision not having been property closed.

135516. The area of the incision had swollen to the size of a

1368grapefruit.

136917. After opening the incision site, Dr. Brinkman found a

1379“huge seroma of pussy infected nasty tissue.” There was also a

1390“huge strange looking nest of hair” which consisted of hundreds

1400of loose hairs inside the incision. According to Dr. Brinkman,

1410there was a dead space in Ricochet which was filled with serum,

1422the area was infected and raw looking, and was “hamburger like.”

143318. Dr. Brinkman removed the mass of hair and the

1443infected, necrotic tissue and closed the incision. On

1451November 11, 2004, Dr. Brinkman’s sutures were removed and

1460Ricochet was discharged from Dr. Brinkman’s care. Ricochet made

1469an uneventful recovery from the surgery performed by

1477Dr. Brinkman.

1479D. Ultimate Findings .

148319. While no one witnessed precisely how the hairs found

1493by Dr. Brinkman when he opened Ricochet’s incision ended up

1503inside Ricochet, the only logical conclusion that can be reached

1513under the facts of this case is that the hairs were left in the

1527site when Dr. Mysore performed the spay on Ricochet on

1537October 13, 2004, and, unnoticed by Dr. Mysore or Mr. King, left

1549inside the surgery site when it was sutured. There simply is no

1561other plausible explanation.

156420. Admittedly, Dr. Mysore performed surgery on Ricochet.

1572At the conclusion of that surgery, Dr. Mysore closed upon the

1583surgery site. While neither Dr. Mysore nor Mr. King saw any

1594hair in the open wound, Ricochet was covered with a drape which

1606could have easily have blocked their view or they simply did not

1618look closely. Just because they did not see the hair, does not

1630mean that it was not there. Once the incision had been sutured

1642by Dr. Mysore, the evidence failed to prove that the amount of

1654hair found by Dr. Brinkman could have gotten into the surgery

1665site in any other manner than by having been left in the site

1678before the incision was sutured.

168321. The foregoing findings are further supported by

1691Dr. Greene’s opinion testimony as to the likely circumstances

1700under which the hairs could have gotten between Ricochet’s

1709abdominal muscles and skin.

171322. It is also found that the tissue discovered by

1723Dr. Brinkman inside the incision cavity was necrotic tissue and

1733that it occurred as a direct result of the surgery performed by

1745Dr. Mysore. This finding is based upon the opinion testimony of

1756Dr. Greene, which was premised upon Dr. Brinkman’s credible

1765description of the tissue he found inside Ricochet when he

1775performed his surgical procedure.

177923. The necrotic tissue found by Dr. Brinkman was caused

1789by the presence of the hair left inside the incision by

1800Dr. Mysore. Again, this is the only plausible explanation for

1810the “hamburger like” tissue found by Dr. Brinkman.

1818E. Dr. Mysore’s Medical Records .

182424. Dr. Mysore failed to record the breed and species of

1835Ricochet in the “heading” of the “Examination Records” he

1844maintained on Ricochet. It was noted, however, that Ricochet

1853was a “dog” in the body of those records.

186225. Ricochet was also identified by species and breed

1871(although not with consistency) in the Surgery Authorization

1879form for Ricochet’s surgery and on receipts of payment for

1889services.

189026. Dr. Mysore also failed to record Ricochet’s

1898temperature in his medical records. Although, if Ricochet’s

1906temperature had been within the normal range, his failure to

1916record her temperature would not have caused any “damage per

1926se,” taking the temperature of an animal and recording it are a

1939normal part of the required physical examination of the animal,

1949which in turn is required to be included in an animal’s medical

1961records.

196227. During Ricochet’s surgery, she was administered the

1970drugs Atropine and Acepromozine. Dr. Mysore noted in Ricochet’s

1979medical records that the drugs were given and recorded the

1989amount given for both drugs combined (3cc’s). Dr. Mysore did

1999not describe in the medical records the amount of the individual

2010dosages of the two drugs given to Ricochet.

201828. Dr. Mysore has suggested that by using the Compendium

2028of Veterinarian Products, which essentially lists drugs used by

2037veterinarians and describes what is in the “package insert” for

2047the drug, it can be determined how much Atropine was

2057administered to Ricochet and that amount can then be subtracted

2067from the total drugs given to determine the amount of

2077Acepromozine. Although there are different strengths of

2084Atropine, the dosage for any strength suggested for use on dogs

2095is the same: 1 mL for each 20 lbs. of body weight. Therefore,

2108knowing Ricochets’ body weight (49 lbs.), it can be determined

2118how much of the 3 cc injection of drugs was Atrophine. This

2130amount can then be subtracted from the total to determine the

2141amount of Acepromozine administered.

214529. The difficulty with Dr. Mysore’s argument is two-fold.

2154First, it cannot be determine from the medical records that

2164Dr. Mysore even relied upon the Compendium. Without this

2173information, there is no way to know to apply the calculation

2184suggested by Dr. Mysore. Although many veterinarians rely upon

2193the information contained in the Compendium, not all do, and,

2203therefore, there would be no reason to assume that Dr. Mysore

2214did in this matter.

221830. Secondly, although veterinarians may rely generally

2225upon information contained in the Compendium, there is no

2234requirement that a veterinarian strictly adhere to the suggested

2243dosages information contained therein. Therefore, even it were

2251assumed in this matter that Dr. Mysore referred to the suggested

2262dosage for Atropine contained in the Compendium, it cannot be

2272assumed that he followed the suggestion.

2278CONCLUSIONS OF LAW

2281A. Jurisdiction .

228431. The Division of Administrative Hearings has

2291jurisdiction over the subject matter of this proceeding and of

2301the parties thereto pursuant to Sections 120.569 and 120.57(1),

2310Florida Statutes (2008).

2313B. The Burden and Standard of Proof .

232132. In the Administrative Complaint, the Department seeks

2329to impose penalties against Dr. Mysore, including suspension or

2338revocation of his license and/or the imposition of an

2347administrative fine. The Department, therefore, has the burden

2355of proving the allegations of the Administrative Complaint by

2364clear and convincing evidence. Department of Banking and

2372Finance, Division of Securities and Investor Protection v.

2380Osborne Stern and Co. , 670 So. 2d 932 (Fla. 1996); Ferris v.

2392Turlington , 510 So. 2d 292 (Fla. 1987); and Nair v. Department

2403of Business & Professional Regulation , 654 So. 2d 205, 207 (Fla.

24141st DCA 1995).

241733. In Evans Packing Co. v. Department of Agriculture and

2427Consumer Services , 550 So. 2d 112, 116, n. 5 (Fla. 1st DCA

24391989), the court defined "clear and convincing evidence" as

2448follows:

2449[C]lear and convincing evidence requires

2454that the evidence must be found to be

2462credible; the facts to which the witnesses

2469testify must be distinctly remembered; the

2475evidence must be precise and explicit and

2482the witnesses must be lacking in confusion

2489as to the facts in issue. The evidence must

2498be of such weight that it produces in the

2507mind of the trier of fact the firm belief or

2517conviction, without hesitancy, as to the

2523truth of the allegations sought to be

2530established. Slomowitz v. Walker , 429 So.

25362d 797, 800 (Fla. 4th DCA 1983).

2543C. The Charges Against Dr. Mysore .

255034. Section 474.214(2), Florida Statutes, authorizes the

2557Board of Veterinary Medicine (hereinafter referred to as the

2566“Board”), to impose penalties ranging from the issuance of a

2576letter of concern to revocation of a veterinarian’s license to

2586practice veterinary medicine in Florida if a licensee commits

2595any of the acts specified in Section 474.214(1), Florida

2604Statutes.

260535. In the Administrative Complaint issued in this case,

2614the Department has alleged that Dr. Mysore committed the

2623offenses specified in Subsections 474.214(1)(r) and (ee),

2630Florida Statutes.

2632D. Count One; Section 474.214(1)(r), Florida Statutes .

264036. Section 474.214(1)(r), Florida Statutes, defines the

2647following disciplinable offense:

2650Being guilty of incompetence or negligence

2656by failing to practice medicine with that

2663level of care, skill, and treatment which is

2671recognized by a reasonably prudent

2676veterinarian as being acceptable under

2681similar conditions and circumstances.

268537. In paragraph 25 of the Administrative Complaint, the

2694Department has alleged that Dr. Mysore committed the foregoing

2703offence (hereinafter be referred to as the “Standard of Care”)

2713improper control of necrotic tissue.”

271838. The only expert testimony as to whether Dr. Mysore

2728violated the Standard of Care as alleged in the Administrative

2738Complaint came from Dr. Greene. His opinion, that Dr. Mysore

2748had violated the Standard of Care as alleged in the

2758Administrative Complaint, was convincing and compelling.

2764Whether his opinion that Dr. Mysore violated the Standard of

2774Care by failing to adequately prepare Ricochet’s surgical site

2783should be credited hinges on whether the facts he relied upon

2794were proved clearly and convincingly. In particular,

2801Dr. Greene’s opinion hinges on whether the evidence proved

2810clearly and convincingly that an extraordinary amount of loose

2819hair was found inside Ricochet’s incision and that the hair got

2830there as a result of the surgery performed on October 13, 2004,

2842by Dr. Mysore. Whether his opinion that Dr. Mysore violated the

2853Standard of Care by failing to control necrotic tissue hinges on

2864whether there was necrotic tissue and, if so, whether it was

2875caused by hair left inside the incision.

288239. As to the “hair” issue, the evidence proved clearly

2892and convincingly that there was a large amount of loose hair

2903inside Ricochet’s incision. This finding is based upon the

2912uncontroverted testimony of Dr. Brinkman.

291740. While no one witnessed how the hair got inside the

2928incision and despite the fact that Dr. Mysore and Mr. King did

2940not see the hair in the incision, the only logical explanation

2951is that the hair was left inside the incision during the surgery

2963Dr. Mysore performed and was there when Dr. Mysore closed the

2974incision.

297541. Had Dr. Mysore adequately prepared and managed

2983Ricochet’s surgical site, the hair would not have ended up

2993inside the incision. Again, it would defy logic to conclude

3003that Dr. Mysore properly managed the surgical site in light of

3014the amount of hair found inside the incision. Dr. Greene’s

3024opinion that Dr. Mysore violated the Standard of Care by

3034inadequate surgical site preparation is, therefore, supported by

3042the facts he relied upon.

304742. As to the necrotic tissue, the evidence supports a

3057finding that there was necrotic tissue inside Ricochet’s

3065incision. It also follows that, had Dr. Mysore not left the

3076large amount of hair inside the incision, the infection and

3086resulting necrotic tissue found by Dr. Brinkman would not have

3096occurred. While the allegation contained in the Administrative

3104Complaint on this issue could have been written more clearly and

3115precisely (as written, it suggests that after necrotic tissue

3124developed, Dr. Mysore did not properly control it), it is

3134concluded that Dr. Mysore was aware of what the allegation meant

3145(that, by his failure to ensure that the surgical site was clear

3157of hair, necrotic tissue developed).

316243. Dr. Greene’s opinion that Dr. Mysore violated the

3171Standard of Care by inadequate necrotic tissue control is,

3180therefore, supported by the facts he relied upon.

318844. Based upon the foregoing, it is concluded that the

3198Department proved clearly and convincingly that Dr. Mysore

3206violated Section 474.214(1)(r), Florida Statutes, as alleged in

3214Count One of the Administrative Complaint.

3220E. Count Two; Section 474.214(1)(ee), Florida Statutes .

322845. Section 474.214(1)(ee), Florida Statutes, defines the

3235following disciplinable offense: “Failing to keep

3241contemporaneously written medical records as required by rule of

3250the board .”

325346. In paragraph 28 of the Administrative Complaint, the

3262Department has alleged that Dr. Mysore committed the foregoing

3271offence “by failing to identify or describe the animal, failing

3281to indicate its temperature, and failing to adequately record

3290drug measurements.”

329247. The Board has established requirements for the

3300maintenance of veterinary medical records in Florida

3307Administrative Code Rule 61G18-18.002 (hereinafter referred to

3314as the “Records Rule”). Generally, veterinary medical records

3322are required to be maintained in Florida Administrative Code

3331Rule 61G18-18.002(1), as follows:

3335There must be an individual medical record

3342maintained on every patient examined or

3348administered to by the veterinarian, except

3354as provided in (2) below, for a period of

3363not less than three years after date of last

3372entry. The medical record shall contain all

3379clinical information pertaining to the

3384patient with sufficient information to

3389justify the diagnosis or determination of

3395health status and warrant any treatment

3401recommended or administered.

340448. The Records Rule goes on to require that the following

3415more specific information be maintained in a veterinary medical

3424record:

3425(3) Medical records shall be

3430contemporaneously written and include the

3435date of each service performed. They shall

3442contain the following information:

3446Name of owner or agent

3451Patient identification

3453Record of any vaccinations administered

3458Complaint or reason for provision of

3464services

3465History

3466Physical examination

3468Any present illness or injury noted

3474Provisional diagnosis or health status

3479determination

3480(4) In addition, medical records shall

3486contain the following information if these

3492services are provided or occur during the

3499examination or treatment of an animal or

3506animals:

3507Clinical laboratory reports

3510Radiographs and their interpretation

3514Consultation

3515Treatment – medical, surgical

3519Hospitalization

3520Drugs prescribed, administered, or dispensed

3525Tissue examination report

3528Necropsy findings

353049. In its Administrative Complaint, the Department has

3538alleged that Dr. Mysore failed to comply with the Records Rule

3549by failing to record the breed and species of the animal, her

3561temperature, and sufficient detail concerning medications

3567provided her during surgery. In Petitioner’s Proposed

3574Recommended Order, the Department has failed to suggest which

3583particular section of Florida Administrative Code Rule 61G18-

359118.002(3) and/or (4) Dr. Mysore violated.

3597Breed and Species

360050. Clearly, Dr. Mysore failed to record the breed and

3610species of Ricochet in the “heading” of the “Examination

3619Records” maintained on Ricochet by Dr. Mysore. It was noted,

3629however, that Ricochet was a “dog” in the body of those records.

364151. Ricochet was also identified by species and breed

3650(although not consistently) in the Surgery Authorization form

3658for Ricochet’s surgery and on receipts of payment for services.

366852. Even though Dr. Greene opined that, in light of the

3679foregoing, Dr. Mysore’s records were inadequate, no case law has

3689been cited to support his conclusion. While the Records Rule

3699requires that medical records are to contain “patient

3707identification” information, the Records Rule is not precise

3715enough to put a veterinarian on notice as to precisely where

3726patient identification information must be maintained.

373253. Based upon the foregoing, it is concluded that Dr.

3742Mysore did not violate Section 474.214(1)(ee), Florida Statutes,

3750by failing to identify or describe the animal.

3758Temperature

375954. The Records Rule requires that veterinary medical

3767records record information concerning any “[p]hysical

3773examination” of the animal. An appropriate physical examination

3781would include the animal’s temperature. Dr. Mysore failed to

3790record Ricochet’s temperature in his medical records.

379755. Based upon the foregoing, it is concluded that Dr.

3807Mysore violated Section 474.214(1)(ee), Florida Statutes, by

3814failing to record Ricochet’s temperature.

3819Medications

382056. The Records Rule requires that medical records include

3829information concerning “[d]rugs prescribed, administered, or

3835dispensed.” Dr. Mysore described the drugs give to Ricochet by

3845name and total combined dosage dispensed. It cannot be

3854determined from his medical records alone the amount of each

3864drug given to Ricochet.

386857. Although the Records Rule could be more precise what

3878is required to properly describe “[d]rugs prescribed,

3885administered, or dispensed,” Dr. Greene opined that the

3894Dr. Mysore should have described the amounts of each drug given

3905to Ricochet and not a combined total. This opinion was not

3916refuted by any other expert opinion.

392258. While identifying the type of drugs administered to an

3932animal is clearly crucial in ensuring the proper care of the

3943animal, being aware of the amount of drug administered is just

3954as crucial. Given the fact that Dr. Mysore did list the amounts

3966of other drugs given and listed the combined dosage of the two

3978drugs in question, Dr. Mysore was aware that, as a veterinarian,

3989he needed to list more than just the type of drug given. And

4002while he may have personally have known how to calculate the

4013amounts of the two drugs, no one else would be know from the

4026records he produced.

402959. Based upon the foregoing, it is concluded that

4038Dr. Mysore violated Section 474.214(1)(ee), Florida Statutes, by

4046failing to record separate amounts of the drugs Atropine and

4056Acepromazine given to Ricochet.

4060F. The Appropriate Penalty .

406560. In determining the appropriate punitive action to

4073recommend to the Board in this case, it is necessary to consult

4085the Board's "disciplinary guidelines," which impose restrictions

4092and limitations on the exercise of the Board's disciplinary

4101authority under Section 474.214, Florida Statutes. See Parrot

4109Heads, Inc. v. Department of Business and Professional

4117Regulation , 741 So. 2d 1231 (Fla. 5th DCA 1999).

412661. The Board's guidelines for violations of Section

4134474.214, Florida Statutes, are set out in Florida Administrative

4143Code Rule 61G18-30.001. As it relates to Dr. Mysore’s violation

4153of Section 474.214(1)(r), Florida Statutes, Florida

4159Administrative Code Rule 61G18-30.001(2)(r), provides for a

4166penalty range of “probation for a period of one year and a two

4179thousand dollars ($2,000.00) administrative fine.”

418562. As it relates to Dr. Mysore’s violation of Section

4195474.214(1)(ee), Florida Statutes, Florida Administrative Code

4201a reprimand plus six months probation, a fine of one thousand

4212five hundred dollars ($1,500.00) and investigative costs.”

422063. The Department has requested penalties in this case

4229consistent with these guidelines. The Department has not,

4237however, considered the aggravating and mitigating circumstances

4244provided for the Board’s consideration pursuant to Florida

4252Administrative Code Rule 61G18-30.001(4):

4256(4) Based upon consideration of

4261aggravating or mitigating factors present in

4267an individual case, the Board may deviate

4274from the penalties recommended in

4279subsections (1), (2) and (3) above. The

4286Board shall consider as aggravating or

4292mitigating factors the following:

4296(a) The danger to the public;

4302(b) The length of time since the

4309violation;

4310(c) The number of times the licensee has

4318been previously disciplined by the Board;

4324(d) The length of time licensee has

4331practiced;

4332(e) The actual damage, physical or

4338otherwise, caused by the violation;

4343(f) The deterrent affect of the penalty

4350imposed;

4351(g) The affect of the penalty upon the

4359licensee’s livelihood;

4361(h) Any effort of rehabilitation by the

4368licensee;

4369(i) The actual knowledge of the licensee

4376pertaining to the violation;

4380(j) Attempts by licensee to correct or

4387stop violation or refusal by licensee to

4394correct or stop violation;

4398(k) Related violations against licensee in

4404another state including findings of guilt or

4411innocence, penalties imposed and penalties

4416served;

4417(l) Actual negligence of the licensee

4423pertaining to any violation;

4427(m) Penalties imposed for related offenses

4433under subsections (1), (2) and (3) above;

4440(n) Pecuniary benefit or self-gain enuring

4446to licensee;

4448(o) Any other relevant mitigating or

4454aggravating factors under the circumstances.

445964. Taking into account the mitigating and aggravating

4467circumstances as to the violation of Section 474.214(1)(r),

4475Florida Statutes, it is concluded that the penalty guideline is

4485appropriate in this case.

448965. Taking into the mitigating and aggravating

4496circumstances as to the violation of Section 474.214(1)(ee),

4504Florida Statutes, it is concluded that the penalty guideline is

4514too severe. In light of the fact that the Department has only

4526proved two of the alleged record keeping violations and given

4536the nature of those violations, it is concluded that a fine of

4548$500.00 and the costs of the investigation for this violations

4558are more appropriate penalties.

4562RECOMMENDATION

4563Based on the foregoing Findings of Fact and Conclusions of

4573Law, it is RECOMMENDED that the Board enter a final order

4584finding that Thandaveshwar Mysore, D.V.M., committed the

4591violations described in this Recommended Order, placing his

4599license to practice veterinary medicine on probation for a

4608period of one year, and requiring that he pay a fine of

4620$2,500.00, and the costs of the investigation of this matter,

4631within 30 days of the entry of the final order.

4641DONE AND ENTERED this 12th day of January, 2009, in

4651Tallahassee, Leon County, Florida.

4655___________________________________

4656LARRY J. SARTIN

4659Administrative Law Judge

4662Division of Administrative Hearings

4666The DeSoto Building

46691230 Apalachee Parkway

4672Tallahassee, Florida 32399-3060

4675(850) 488-9675 SUNCOM 278-9675

4679Fax Filing (850) 921-6847

4683www.doah.state.fl.us

4684Filed with the Clerk of the

4690Division of Administrative Hearings

4694this 12th day of January, 2009.

4700COPIES FURNISHED :

4703Martin P. McDonnell, Esquire

4707Rutledge, Ecenia, Purnell & Hoffman, P.A.

4713Post Office Box 551

4717Tallahassee, Florida 32302

4720Charles Tunnicliff, Esquire

4723Department of Business &

4727Professional Regulation

47291940 North Monroe Street, Suite 60

4735Tallahassee, Florida 32399-2202

4738Elizabeth F. Duffy, Esquire

4742Department of Business and

4746Professional Regulation

47481940 North Monroe Street, Suite 42

4754Tallahassee, Florida 32399-2202

4757Juanita Chastain, Executive Director

4761Board of Veterinary Medicine

4765Department of Business and

4769Professional Regulation

4771Northwood Centre

47731940 North Monroe Street

4777Tallahassee, Florida 32399-0792

4780Ned Luczynski, General Counsel

4784Department of Business and

4788Professional Regulation

4790Northwood Centre

47921940 North Monroe Street

4796Tallahassee, Florida 32399-0792

4799NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

4805All parties have the right to submit written exceptions within

481515 days from the date of this recommended order. Any exceptions

4826to this recommended order should be filed with the agency that

4837will issue the final order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/23/2009
Proceedings: Final Order filed.
PDF:
Date: 04/17/2009
Proceedings: Agency Final Order
PDF:
Date: 03/30/2009
Proceedings: Notice of Withdrawal of Counsel filed.
PDF:
Date: 01/27/2009
Proceedings: Notice of Change of Address of Counsel (filed by M. McDonnell) filed.
PDF:
Date: 01/13/2009
Proceedings: Transmittal letter from Claudia Llado forwarding the Deposition of Alan Greene, D.V.M., to the agency.
PDF:
Date: 01/12/2009
Proceedings: Recommended Order
PDF:
Date: 01/12/2009
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 01/12/2009
Proceedings: Recommended Order (hearing held November 4, 2008). CASE CLOSED.
PDF:
Date: 01/06/2009
Proceedings: Motion to Strike Untimely Proposed Recommended Order filed.
PDF:
Date: 12/30/2008
Proceedings: Petitioner`s Proposed Recommended Order filed.
PDF:
Date: 12/29/2008
Proceedings: Respondent, Thandaveshwar Mysore`s Proposed Recommended Order filed.
PDF:
Date: 11/26/2008
Proceedings: Notice of Filing Transcript.
Date: 11/26/2008
Proceedings: Transcript filed.
PDF:
Date: 11/04/2008
Proceedings: Joint Pre-hearing Stipulation filed w/judge at hearing.
PDF:
Date: 11/04/2008
Proceedings: Petitioner`s Motion to Accept Qualified Representative filed w/judge at hearing.
Date: 11/04/2008
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 11/03/2008
Proceedings: Deposition (of J. Alan Green, D.V.M.) filed.
PDF:
Date: 11/03/2008
Proceedings: Thandaveshwar Mysore`s Notice of Filing Deposition of Jerry Alan Green, D.V.M. filed.
PDF:
Date: 11/03/2008
Proceedings: Motion in Limine filed.
PDF:
Date: 11/03/2008
Proceedings: Thandaveshwar Mysore`s Notice of Filing Exhibits (exhibits not availabe for viewing) filed.
PDF:
Date: 10/29/2008
Proceedings: Respondent`s Response to Petitioner`s First Request for Production of Documents filed.
PDF:
Date: 10/29/2008
Proceedings: Respondent`s Response to Petitioner`s First Request for Interrogatories filed.
PDF:
Date: 10/29/2008
Proceedings: Petitioner`s First Request for Admissions filed.
PDF:
Date: 10/29/2008
Proceedings: Notice of Taking Deposition (of Dr. J. Allen) filed.
PDF:
Date: 10/28/2008
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for November 4, 2008; 9:00 a.m.; West Palm Beach and Tallahassee, FL; amended as to video and location).
PDF:
Date: 10/02/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for November 4, 2008; 9:00 a.m.; West Palm Beach, FL).
PDF:
Date: 09/30/2008
Proceedings: Petitioner`s Motion for Continuance filed.
PDF:
Date: 09/11/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for October 24, 2008; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 09/08/2008
Proceedings: Unopposed Motion for Continuance filed.
PDF:
Date: 09/02/2008
Proceedings: Order Denying Motion to Dismiss.
PDF:
Date: 08/29/2008
Proceedings: Response to Respondent`s Request for Production of Documents filed.
PDF:
Date: 08/29/2008
Proceedings: Response to Respondent`s First Set of Interrogatories filed.
PDF:
Date: 08/29/2008
Proceedings: Petitioner`s First Request for Admissions filed.
PDF:
Date: 08/29/2008
Proceedings: Notice of Serving Discovery on Respondent filed.
PDF:
Date: 08/29/2008
Proceedings: Petitioner`s Response in Opposition to Respondent`s Motion to Dismiss filed.
PDF:
Date: 08/28/2008
Proceedings: Motion to Dismiss filed.
PDF:
Date: 08/04/2008
Proceedings: Order Granting Motion to Compel.
PDF:
Date: 07/25/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for September 16, 2008; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 07/24/2008
Proceedings: Motion to Compel filed.
PDF:
Date: 07/24/2008
Proceedings: Motion for Continuance filed.
PDF:
Date: 07/24/2008
Proceedings: Petitioner`s Motion for Continuance filed.
PDF:
Date: 07/24/2008
Proceedings: Notice of Appearance (filed by E. Duffy).
PDF:
Date: 06/12/2008
Proceedings: Thandaveshwar Mysore`s Notice of Service of First Set of Interrogatories and Request for Production of Documents to Petitioner filed.
PDF:
Date: 05/29/2008
Proceedings: Order Granting Continuance and Re-scheduling Hearing by Video Teleconference (hearing set for July 30, 2008; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 05/22/2008
Proceedings: Joint Motion for Continuance filed.
PDF:
Date: 04/15/2008
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 04/15/2008
Proceedings: Notice of Hearing by Video Teleconference (hearing set for June 5, 2008; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
PDF:
Date: 04/10/2008
Proceedings: Respondent`s Response to Initial Order filed.
PDF:
Date: 04/09/2008
Proceedings: Petitioner`s Response to Initial Order filed.
PDF:
Date: 04/02/2008
Proceedings: Initial Order.
PDF:
Date: 04/01/2008
Proceedings: Election of Rights filed.
PDF:
Date: 04/01/2008
Proceedings: Administrative Complaint filed.
PDF:
Date: 04/01/2008
Proceedings: Agency referral filed.

Case Information

Judge:
LARRY J. SARTIN
Date Filed:
04/01/2008
Date Assignment:
04/02/2008
Last Docket Entry:
04/23/2009
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
PL
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (3):

Related Florida Rule(s) (2):