98-004650 Board Of Veterinary Medicine vs. William R. Dudley, Jr. Status: Closed Recommended Order on Wednesday, March 24, 1999.

Summary: Improper declawing operation on a cat by Respondent is sufficient to subject Respondent`s license to discipline for negligent practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 98-4650

)

WILLIAM R. DUDLEY, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, an Administrative Law

Judge of the Division of Administrative Hearings, held a formal

hearing in the above-styled case on February 9, 1999, in Milton,

Florida.

APPEARANCES

For Petitioner: Paul F. Kirsch, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: William R. Dudley, Jr., D.V.M., pro se

613 Westwood Drive

Milton, Florida 32570

STATEMENT OF THE ISSUE

The issue for determination is whether Respondent, a

licensed veterinarian, committed a violation of Section

474.214(1), Florida Statutes, as alleged in the Administrative

Complaint, and, if so, what disciplinary sanctions should be

imposed against his license.

PRELIMINARY STATEMENT

On June 19, 1998, Petitioner issued an Administrative

Complaint alleging that Respondent had violated laws regulating

his professional activities as a veterinarian. The five-count

Administrative Complaint charged Respondent with failing to have

a quarantine area for storage of certain drugs in violation of

Section 474.214(1)(bb), Florida Statutes; with being guilty of

incompetent or negligent practice of veterinary medicine in

violation of Section 474.214(1)(r), Florida Statutes; with

practice of veterinary medicine at a location for which a valid

premises permit had not been issued, a violation of Section

474.214(1)(w), Florida Statutes; with failure to keep

appropriate, rule required records in violation of

474.214(1)(ee), Florida Statutes; and with failure to maintain

records required by Chapter 474, Florida Statutes, or by other

state or federal laws relating the storage, labeling, or other

regulation of controlled substances.

Respondent requested a formal administrative hearing on

charges in the Administrative Complaint. Subsequently, the

matter was transferred to the Division of Administrative Hearings

for conduct of a formal hearing pursuant to Section 120.57(1),

Florida Statutes.

At the final hearing, Petitioner presented the testimony of

five witnesses and offered four exhibits. Respondent presented

the testimony of one witness, himself. He offered one composite

exhibit consisting of ten (10) photographs into evidence.

Count I of the Administrative Complaint was withdrawn by

Petitioner in the course of the final hearing.

The transcript of the final hearing was filed with the

Division of Administrative Hearings on March 8, 1999.

Proposed findings of fact submitted by the parties have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is William R. Dudley, a licensed veterinarian

at all times pertinent to these proceedings, holding license

number VM 0000626. Respondent's last known address is 613

Westwood Drive, Milton, Florida 32570.

2. Petitioner is the state agency charged with regulating

the practice of veterinary medicine pursuant to Section 20.165,

Florida Statutes; Section 455, Florida Statutes; and Section 474,

Florida Statutes.

3. On or about January 5, 1998, Respondent performed declaw

surgery on Aladdin, a Chocolate Point Siamese cat owned by Kim

Hawkins. The surgery was performed on a fold-down table attached

to the back of Respondent’s pickup truck. The truck was

outfitted as an agricultural veterinary vehicle.

4. Respondent administered a mixture of Ketaset and

Acepromazine to the cat prior to surgery. No other medication

was administered to the animal for purpose of either analgesia or

anesthesia.

5. The Ketaset and Acepromazine administered to the cat are

both controlled substances. These drugs are not anesthetics and

served only to immobilize the cat during the operation.

6. After the surgery, Kim Hawkins took the cat home . The

animal’s paws continued to bleed. On January 7, 1998, the cat

was examined by another veterinarian, Dr. Yehia Ibrahim, who

wanted to know “who had butchered the cat.”

7. In a declaw procedure, the animal is first anesthetized

and the cat’s claw and the third phalanx of each toe are removed.

Each toe has three phalanxes and a claw. While the procedure

performed by Respondent involved only the animal’s front paws,

Respondent did not remove all of the third phalanx on several of

the animal’s toes, and removed the third and part or all of the

second phalanx on the animal’s other toes. Respondent removed

part of the digital pad on most, if not all, of the toes on both

of the cat’s front claws.

8. As established by the evidence at final hearing,

Respondent performed the declaw surgery in a negligent manner.

9. Respondent did not make or retain any medical record of

the declaw procedure performed on the Hawkins’ cat.

10. Respondent did not have a premise permit for his house

or a mobile clinic.

11. Respondent also did not have a record which related to

the storing, labeling, or administering of the controlled

substances that he utilized during the declaw procedure on the

Hawkins’ cat.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter. Section

120.57(1), Florida Statutes.

13. Petitioner bears the burden of proof of the charges set

forth in the Administrative Complaint in this case. Since a

final determination of Respondent's culpability could result in

imposition of disciple upon Respondent's license, the proof that

Respondent has committed those violations must be clear and

convincing. Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

Petitioner has fulfilled this obligation with regard to Counts

II, III, IV, and V of the Administrative Complaint.

14. The Florida Board of Veterinary Medicine is empowered

by Section 474.214, Florida Statutes, to discipline Respondent

and provides, in pertinent part, the following:

(1) The following acts shall constitute

grounds for which the disciplinary actions in

subsection (2) may be taken:

* * *

(r) Being guilty of incompetence or

negligence by failing to practice medicine

with that level of care, skill, and treatment

which is recognized by a reasonably prudent

veterinarian as being acceptable under

similar conditions and circumstances.

* * *

(w) Practicing veterinary medicine at a

location for which a valid premises permit

has not been issued when required under s.

474.215.

* * *

(ee) Failing to keep contemporaneously

written medical records as required by rule

of the board.

* * *

(mm) Failing to maintain accurate records or

reports as required by this chapter or by

federal or state laws or rules pertaining to

the storing, labeling, selling, dispensing,

prescribing, and administering of controlled

substances.

* * *

(2) When the board finds any applicant or

veterinarian guilty of any of the grounds set

forth in subsection (1), regardless of

whether the violation occurred prior to

licensure, it may enter an order imposing one

or more of the following penalties:

(a) Denial of certification for examination

or licensure.

(b) Revocation or suspension of a license.

(c) Imposition of an administrative fine not

to exceed $1,000 for each count or separate

offense.

(d) Issuance of a reprimand.

(e) Placement of the veterinarian on

probation for a period of time and subject to

such conditions as the board may specify,

including requiring the veterinarian to

attend continuing education courses or to

work under the supervision of another

veterinarian.

(f) Restricting the authorized scope of

practice.

(g) Imposition of costs of the investigation

and prosecution.

(h) Requiring the veterinarian to undergo

remedial education.

15. Guidelines that are pertinent to imposition of penalty

in this instance are set forth in Rule 61G18-30.001(4), Florida

Administrative Code, and read as follows:

(4) . . . The Board shall consider as

aggravating or mitigating factors the

following:

(a) The severity of the offense;

(b) The danger to the public;

(c) The number of repetitions of offenses;

(d) The length of time since the violation;

(e) The number of times the licensee has

been previously disciplined by the Board;

(f) The length of time licensee has

practiced;

(g) The actual damage, physical or

otherwise, caused by the violation;

(h) The deterrent effect of the penalty

imposed;

(i) The effect of the penalty on the

licensee's livelihood;

(j) Any effort of rehabilitation by the

licensee;

(k) The actual knowledge of the licensee

pertaining to the violation;

(l) Attempts by licensee to correct or stop

violation or refusal by licensee to correct

or stop violation;

(m) Related violations against licensee in

another state including findings of guilt or

innocence, penalties imposed and penalties

served;

(n) Actual negligence of the licensee

pertaining to any violation;

(o) Penalties imposed for related offenses

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

(p) Pecuniary benefit or self-gain enuring

to licensee;

(q) Any other relevant mitigating or

aggravating factors under the circumstances.

16. While Respondent has committed violations which could

result in a maximum fine of $2,500, assessment of investigative

costs, a reprimand and one year of probation, factors in

mitigation are Respondent’s licensed status as a veterinarian in

the State of Florida since 1960 with no other disciplinary action

taken against his license.

RECOMMENDATION

Based on the foregoing and in accordance w ith Petitioner's

penalty guidelines, it is hereby RECOMMENDED that a Final Order

be entered finding Respondent guilty of the violations alleged in

Counts II, III, IV, and V of the Administrative Complaint;

imposing an administrative fine of $1000; and placing Respondent

on probation for one year upon reasonable terms and conditions to

be established by the Board of Veterinary Medicine.

DONE AND ENTERED this 24th day of March, 1999, in

Tallahassee, Leon County, Florida.

_____________________________ ______

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing (850) 921-6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

This 24th day of March, 1999.

COPIES FURNISHED:

Paul F. Kirsch, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

William R. Dudley, Jr., D.V.M.

613 Westwood Drive

Milton, Florida 32570

Lynda L. Goodgame, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

John Currie, Executive Director

Board of Veterinary Medicine

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-0792

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.