00-002358 Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Walter H. Dornbusch, D.V.M. Status: Closed Recommended Order on Tuesday, December 19, 2000.

Summary: Respondent deviated from the standard of care in two cases by failure to offer a pre-anesthesia lab work-up; use of improper anesthesia protocol; and inadequate discharge instructions; suspension, fine, and probation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF VENTERNARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 00-2357

)

WALTER H. DORNBUSCH, D.V.M., )

)

Respondent. )

)

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 00-2358

)

WALTER H. DORNBUSCH, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in the above-styled cases was held before

Daniel M. Kilbride, Administrative Law Judge, Division of

Administrative Hearings, on September 25, 2000, in Viera,

Florida. The hearing was concluded September 28, 2000, via

video teleconference, with Petitioner and the Administrative Law

Judge in Tallahassee, Florida and Respondent and his witnesses

in Orlando, Florida.

APPEARANCES

For Petitioner: Robert H. Horsay, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Walther H. Dornbusch, D.V.M., pro se

1117 Malabar Road Northeast

Palm Bay, Florida 32907

STATEMENT OF THE ISSUES

Whether disciplinary action should be taken against

Respondent's license as a veterinarian based on alleged

violations of Section 474.214, Florida Statutes (1997), as

charged in the Administrative Complaints filed against

Respondent in this proceeding.

Count I of the Administrative Complaint in Case No. 00-2357

charged Respondent with a violation of Section 474.214(1)(r),

Florida Statutes (1997): 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.

Count II of the Administrative Complaint charged Respondent

with a violation of Section 474.214(1)( ee), Florida Statutes

(1997): failing to keep contemporaneously written medical

records as prescribed by Rule 61G18-18.002(3), Florida

Administrative Code.

The Administrative Complaint in Case No. 00-2358 charged

Respondent with a violation of Section 474.214(1)(r), Florida

Statutes (1997): 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.

PRELIMINARY STATEMENT

On April 6, 2000, Petitioner filed a two-count

Administrative Complaint, DBPR Case No. 98-11323 (DOAH Case No.

00-2357), against Respondent, alleging violations of Chapter

474, Florida Statutes (1997).

On October 6, 1999, Petitioner filed an Administrative

Complaint, DBPR Case No. 98-21230 (DOAH Case No. 00-2358),

against Respondent alleging violations of Section 474.214,

Florida Statutes (1997).

Respondent disputed the allegations contained in both of

the Administrative Complaints and elected a formal

administrative hearing for each. Consequently, each case was

transferred to the Division of Administrative Hearings on June

6, 2000, to conduct hearings pursuant to Section 120.57, Florida

Statutes (1997). The cases were consolidated at the Division of

Administrative Hearings on September 14, 2000, and this hearing

followed.

During the hearing, Petitioner offered the testimony of

three witnesses: Maryjane Greene (owner of "Midnight"); Erich

Scherer, Investigator for the Department of Business and

Professional Regulation; and Jerry Alan Greene, D.V.M. (expert

witness). Petitioner offered seven Exhibits, all of which were

received into evidence. Respondent presented the testimony of

two witnesses: Richard George, D.V.M. (limited expert witness)

and Diana Morisseau (Respondent's former employee). Respondent

also testified on his own behalf. Respondent offered two

Exhibits, both of which were received into evidence.

The Transcript of the hearing was filed on October 27,

2000. Petitioner filed its post-hearing submittals on November

20, 2000. Respondent submitted a post-hearing memorandum on

October 19, 2000. Both parties' proposals have been given

careful consideration in the preparation of this order.

FINDINGS OF FACT

Based on the evidence and testimony of the witnesses

presented and the entire record in this proceeding, the

following facts are found:

1. At all times material, Respondent was a licensed

veterinarian, having been issued license number VM 0003822.

Facts relating to Case No. 00-2357

2. On or about March 5, 1998, Respondent performed a spay

on "Midnight," a dog owned by Maryjane Greene and her husband.

3. On or about March 8, 1998, "Midnight" expired at the

Greene's home.

4. When Mrs. Greene dropped off "Midnight," she was not

sufficiently informed by Respondent about her option to have a

pre-anesthesia lab work-up performed.

5. There is no indication of an offer to perform a pre-

anesthesia lab work-up, nor an indication that Mr. or Mrs.

Greene declined such an offer, nor a consent form declining such

a work-up, noted in the medical records kept by Respondent for

"Midnight."

6. It is a deviation from the standard of care to fail to

offer a pre-anesthesia lab work-up.

7. The anesthetic protocol used by Respondent during the

spay of "Midnight" included Xylzine (a.k.a. Rompun) a drug with

a profound and potentially deleterious effect on the heart which

may cause a first degree or second degree heart block.

8. The anesthetic protocol used by Respondent during the

spay of "Midnight" also included Ketamine, which is not approved

for use in dogs. When used as an anesthetic protocol, it is

considered an extra-label use of the drug.

9. An extra-label use of a drug means that there have been

no safety studies completed, and it cannot be adequately

predicted what effects the medication will have on an animal on

a consistent basis.

10. There is no indication in Respondent's records for

"Midnight" that Mrs. Greene was informed regarding the use of

Ketamine in her dog's procedure.

11. It is a deviation from the standard of care not to

make a client aware of the use of an extra-label drug and not to

have the client sign a consent form.

12. Xylazine and Ketamine are both cardiac depressants.

When used in combination they each make the other more of a

cardiac depressant, thus requiring the administration of another

drug, such as Atropine, to minimize the cardiac depressant

effect.

13. There is no indication in Respondent's medical records

for "Midnight" that Atropine or any other drug was administered,

other that the Xylazine and Ketamine.

14. Respondent's failure to administer Atropine or any

other drug to minimize the cardiac depressant effects of

Xylazine and Ketamine was a deviation from the standard of care.

15. Respondent's failure to administer Atropine or any

other drug to minimize the cardiac depressant effects of

Xyalzine and Ketamine played a substantial role in "Midnight's"

demise.

16. Upon picking up "Midnight," Mrs. Greene was given

limited post-operative instructions. She was told not to give

"Midnight" water until he could walk a straight line; not to

give food until he could hold water down; only leash walks for

10 days; and no baths for 7-10 days.

17. Respondent's post-operative discharge instructions

given to Mrs. Greene did not comply with the standard of care in

veterinary medicine.

Facts relating to Case No. 00-2358

18. On or about August 25, 1998, Respondent performed

surgery to remove a mass from the perineal area of "Snoopy," a

nine-year-old obese Beagle belonging to Juan Ferras.

19. There is no indication in Respondent's records for

"Snoopy" that the surgery was performed due to an emergency,

although the credible testimony indicated that it was an

emergency.

20. Given " Snoopy's" age (nine years) and weight (60

lbs.), it would be in the dog's best interest to perform a pre-

anesthesia lab work-up, or to at least offer one to the owner.

21. Respondent did not indicate in his medical records

that he offered to perform a pre-anesthesia lab work-up on

"Snoopy."

22. In view of the emergency nature of the surgery, it was

not a deviation from the standard of care to fail to offer a

pre-anesthesia lab work-up.

23. The anesthetic protocol used by Respondent during the

procedure on "Snoopy" included Ketamine, which is not approved

for use in dogs. When used, it is considered an extra-label use

of the drug.

24. Ketamine should be used with extreme caution in dogs

for which the veterinarian is unaware of the renal function or

the liver function of the dog.

25. It is a deviation from the standard of care not to

make a client aware of the use of an extra-label drug, and not

to have the client sign a consent form.

26. There is no indication in Respondent's records for

"Snoopy" that Juan Ferras was informed regarding the use of

Ketamine in his dog's procedure.

27. Upon picking up "Snoopy," Mr. Ferras was given limited

post-operative instructions.

28. Respondent's failure to give specific post-operative

discharge instructions to Mr. Ferras constituted a deviation

from the standard of care.

29. After discharge, "Snoopy" began vomiting and was

readmitted to Respondent's facility on or about August 27, 1998.

30. On or about August 28, 1998, "Snoopy" expired at

Respondent's facility.

31. There is no indication in Respondent's records on

"Snoopy" that upon " Snoopy's" readmission to Respondent's

facility, on or about August 27, 1998, Juan Ferras refused to

pay or was only willing to pay a small portion of any treatment

rendered to "Snoopy." Because of this finding it is unnecessary

to address whether refusal to pay a fee is an appropriate

defense by Respondent.

32. Upon " Snoopy's" readmission to Respondent's facility,

on or about August 27, 1998, "Snoopy" was determined to be

approximately 11 percent dehydrated and in a state of shock.

33. In order to correct the dehydration and maintain

"Snoopy," it would have been required to administer

approximately 4300-4400 ccs of fluid.

34. Respondent's records indicate that only 800 ccs of

fluids were administered to "Snoopy." This left "Snoopy" with a

tremendous deficit of fluids.

35. Respondent's explanation as to the reason for the

small amount of fluid shown on " Snoopy's" chart is not credible.

36. Respondent's failure to administer the correct amount

of fluids constitutes a deviation from the standard of care.

37. Upon readmission to Respondent's clinic, Respondnet

did not draw blood or perform any type of bloodwork on "Snoopy."

38. Respondent's failure to draw blood or perform any type

of bloodwork on "Snoopy" after being readmitted for dehydration

and vomiting and shock constitutes a deviation from the standard

of care.

39. The fluids which were administered to "Snoopy" were

administered sub- cutaneously.

40. The failure to insert an IV catheter to administer the

fluids, rather than administering them sub- cutaneously,

constitutes a deviation from the standard of care.

41. One way of re-hydrating a dehydrated patient is by

weighing the dog and then adding enough fluids to get the

patient to its normal weight.

42. There is no indication in Respondent's records that

"Snoopy" was weighed at the end of the day on or about August

27, 1998, or that "Snoopy" weighed approximately 60 pounds late

in the day on or about August 27, 1998.

43. Respondent's records for "Snoopy" contain a notation

at 10:00 p.m. August 27, 1998, of "ADR" which means "ain't doing

right."

44. A patient whose records indicate "ADR" should be

continuously monitored or transferred to an emergency facility.

45. "Snoopy" was not monitored overnight and through the

early hours of the next morning.

46. Had Respondent taken appropriate steps with regards to

fluid resuscitation upon " Snoopy's" readmission to Respondent's

facility, " Snoopy's" chance of survival would have been much

higher.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding, pursuant to Sections 120.569 and 120.57, Florida

Statutes (1997).

48. Petitioner, the Department of Business and

Professional Regulation, is the state agency charged with

regulating the practice of veterinary medicine, pursuant to

Section 20.165 and Chapters 455 and 474, Florida Statutes

(1997).

49. Pursuant to Section 474.214(2), Florida Statutes

(1997), the Board of Veterinary Medicine is empowered to revoke,

suspend, or otherwise discipline the license of a veterinarian

who is found guilty of any of the grounds enumerated in Section

474.214(1), Florida Statutes (1997).

50. Petitioner has the burden of proving by clear and

convincing evidence each of the allegations filed against

Respondent. Section 120.57(1)(h), Florida Statutes (1997);

Ferris v. Turlington , 510 So. 2d. 292 (Fla. 1987); Department of

Banking and Finance v. Osborne Stern and Co. , 670 So. 2d. 932

(Fla. 1996).

51. The Administrative Complaints charge that Respondent

is guilty of having violated Section 474.214(1)(r), and ( ee),

Florida Statutes (1997), which provide, in pertinent part, as

follows:

(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.

* * *

( ee) Failing to keep contemporaneously

written medical records as required by rule

of the board.

52. Rule 61G18-18.002(3) and (4), Florida Administrative

Code, provide, in pertinent part, as follows:

(3) Medical Records shall be

contemporaneously written and include the

date of each service performed. They shall

contain the following information:

Name of owner or agent

Patient identification

Record of any vaccinations administered

Complaint or reason for provision of

services

History

Physical examination

Any present illness or injury noted

Provisional diagnosis or health status

determination

(4) In addition, medical records shall

contain the following information if these

services are provided for occur during the

examination or treatment of an animal or

animals:

Clinical laboratory reports

Radiographs and their interpretation

Consultation

Treatment-medical, surgical

Hospitalization

Drugs prescribed, administered, or

dispensed

Tissue examination report

Necropsy findings

53. As to Case No. 00-2357, Count I, Petitioner has proven

by clear and convincing evidence that Respondent violated

Section 474.214(1)(r), Florida Statutes (1997), by being guilty

of incompetence or negligence by failing to practice medicine

with that level or care, skill, or treatment which is recognized

by a reasonably prudent veterinarian as being acceptable under

similar conditions and circumstances.

54. Respondent failed to offer the dog's owner a pre-

anesthesia lab work-up and/or failed to note such an offer in

his medical records for "Midnight." Respondent used an improper

anesthesia protocol by using an extra-label drug without

informing the dog's owner or obtaining her consent.

Furthermore, Respondent did not administer Atropine or any other

drug to minimize the cardiac depressant effects of the

anesthesia utilized during the procedure. Respondent also gave

the dog's owner inadequate discharge instructions.

55. As to Case No. 00-2357, Count II, Petitioner has

proven by clear and convincing evidence that Respondent violated

Section 474.214(1)( ee), Florida Statutes (1997), by failing to

keep contemporanously written medical records as required by

rule of the board.

56. Respondent did not indicate in his records for

"Midnight" whether he had a pre-operative discussion with either

of the Greenes regarding a pre-anesthetic lab work-up or whether

either of the Greenes was informed of his intent to use an

extra-label drug. Furthermore, Respondent did not adequately

indicate all of the standard post-operative discharge

instructions in his records for "Midnight."

57. Respondent's negligence ultimately led to "Midnight's"

demise.

58. As to Case No. 00-2358, Petitioner has proven by clear

and convincing evidence that Respondent violated Section

474.214(1)(r), Florida Statutes (1997), by being guilty of

incompetence or negligence by failing to practice medicine with

that level or care, skill, or treatment which is recognized by a

reasonably prudent veterinarian as being acceptable under

similar conditions and circumstances.

59. Although Respondent failed to offer the dog's owner a

pre-anesthesia lab work-up and/or failed to note such an offer

in his medical records for "Snoopy," since the operation was an

emergency, such omission was not negligence.

60. Respondent used an improper anesthesia protocol by

using an extra-label drug without informing the dog's owner or

obtaining his consent. Respondent also gave Mr. Ferras

inadequate post-operative discharge instructions.

61. Upon " Snoopy's" readmission to Respondent's facility,

Respondent failed to properly rehydrate "Snoopy" and failed to

draw blood. "Snoopy" was left without someone to monitor him

after Respondent determined he was "ADR." Respondent's

negligence ultimately led to " Snoopy's" demise.

62. Respondent's explanations to his conduct in this case

is not persuasive.

63. Respondent is subject to disciplinary action by the

Board of Veterinary Medicine, pursuant to Sections 455.227 and

474.214(2), Florida Statutes (1997). The disciplinary action

under these statutes includes revoking or suspending the

license, placing the license on probation, reprimanding the

licensee, imposing an administrative fine not to exceed $1000

for each count or separate offense, restricting the authorized

scope of practice, imposing costs of the investigation, and

requiring remedial education.

64. Section 455.227(5), Florida Statutes (1997), states

that the Administrative Law Judge, in recommending penalties in

any recommended order, must follow the penalty guidelines

established by the board or department and must state in writing

the mitigating or aggravating circumstances upon which the

recommended penalty is based.

65. Rule 61G18-30.001(2), Florida Administrative Code,

provides, in pertinent part, the following guidelines that are

pertinent to this proceeding:

(r) Being guilty of incompetence or

negligence by failing to practice veterinary

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.

The usual action of the Board shall be to

impose a penalty of probation for a period

of one year and a one thousand dollar

($1000) administrative fine.

* * *

( ee) Failing to keep contemporaneously

written medical records as required by rule

of the Board.

The usual action of the Board shall be

issuance of a reprimand plus six months

probation and investigative costs.

66. Rule 61G18-30.001(4), Florida Administrative Code,

provides, in pertinent part, that based upon consideration of

aggravating or mitigating factors present in an individual case,

the Board may deviate from the penalties recommended. 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.

* * *

(e) The number of times the licensee

has been previously discplined by the Board

* * *

(g) The actual damage, physical or

otherwise, caused by the violation

67. Petitioner has demonstrated by clear and convincing

evidence aggravating factors established in Rule 61G18-

30.001(4)(a), (b), (C), (e), and (g), Florida Administrative

Code. Respondent has one prior disciplinary action against him

resulting from the combination of two cases, DBPR Case

Nos. 95-03305 and 95-16337, whereby Respondent was placed on

probation. In these two prior instances, along with the two at

hand, a total of four animals have died, creating a significant

risk of harm to the public.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is recommended that a final order be render by the Board

of Veterinary Medicine, as follows:

1. Finding Respondent guilty of having violated Section

474.214(1)(r), Florida Statutes (1997), as alleged in Count I of

the Administrative Complaint for DOAH Case No. 00-2357 (DBPR

Case NO. 98-11323).

2. Finding Respondent guilty of having violated Section

474.214(1)( ee), Florida Statutes (1997), as alleged in Count II

of the Administrative Complaint for DOAH Case No. 00-2357 (DBPR

Case No. 98-11323).

3. Finding Respondent guilty of having violated Section

474.214(1)(r), Florida Statues (1997), as alleged in the

Administrative Complaint for DOAH Case No. 00-2358 (DBPR Case

No. 98-21230).

4. In light of these findings of guilt and aggravating

circumstances, the following penalties are recommended:

a. A thirty-day suspension of

licensure.

b. An administrative fine in the

amount of four-thousand dollars ($4000.00).

c. Assessing costs of investigation

and prosecution, in the amount of $973.24

for Case No. 00-2357 and $684.29 for Case

No. 00-2358.

d. Five years of monitored probation

upon such terms and conditions as the Board

finds necessary and reasonable.

DONE AND ENTERED this 19th day of December, 2000,

in Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

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 19th day of December, 2000.

COPIES FURNISHED :

Walter H. Dornbusch, D.V.M.

1117 Malabar Road, Northeast

Palm Bay, Florida 32907

Robert H. Hosay, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

Barbara D. Auger, General Counsel

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Sherry Landrum, Director

Board of Veterinary Medicine

Department of Business and

Professional Regulation

Northwood Centre

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.