01-004666PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Aime Patrick Gauvin, D.V.M. Status: Closed Recommended Order on Wednesday, September 4, 2002.

Summary: Evidence showed that incomplete vet record showed diagnosis and course of treatment for deceased dog sufficient to meet rule, even though minute detail not included because record had been stolen from Respondent`s office and returned three weeks later.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 01 - 4666PL

)

AIME PATRICK GAUVIN, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before the Division

of Administrative Hearings by its duly - designated Administrative

Law Judge, Diane Cleavinger, on May 6, 2002, in Gainesville,

Florida.

APPEA RANCES

For Petitioner: Tiffany A. Short, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Charles F. Tunnicliff, Esquire

Department of Business and

Professional Regul ation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: C. Robert Edewaard, Esquire

Post Office Box 2297

Gainesville, Florida 32602

STATEMENT OF THE ISSUE

Whether Respondent's veterinary license should be

disciplined.

PRELIMINARY STATEMENT

Petitioner filed a seven - count Administrative Complaint

against Respondent, Aime Patrick Gauvin, III, DVM, on April 5,

2001. Six of the seven counts were dismissed by Petitioner.

The remaining count alleged that Respondent violat ed Section

474.214(1)(ee), Florida Statutes, by failing to keep

contemporaneous veterinary records. On May 17, 2001, Respondent

filed an Election of Rights Form with the Department of Business

and Professional Regulation requesting an informal hearing. O n

November 19, 2001, Respondent filed an amended Election of

Rights Form with the Department changing his election and

requesting a formal administrative hearing. The case was

forwarded to the Division of Administrative Hearings (DOAH).

At the hearing, Pe titioner presented the testimony of two

witnesses and offered three exhibits into evidence. Respondent

testified in his own behalf and presented the testimony of two

additional witnesses. Respondent also offered five exhibits

into evidence.

After the hea ring, the parties submitted Proposed

Recommended Orders on July 24, 2002.

FINDINGS OF FACT

1. At all times pertinent to this proceeding, Respondent

was a licensed doctor of veterinary medicine, having been issued

License No. VM 0003845 by the Board of Veterinary Medicine on

July 1, 1985. During his career, Respondent has taught at the

University of Florida veterinary school, developed patents in

the field of veterinary medicine, performed research in the

veterinary field, and become certified in veteri nary laser

surgery. Because he does research and because his

wife/veterinary partner frequently provides follow - up care,

Respondent is a meticulous record keeper.

2. Precious was a grossly obese, 11 - year - old, female

English bulldog. She was owned by th e Salters and had been

previously treated by the Respondent. In fact, the Salters were

friends of some of the clinic's staff who treated her.

3. On July 7, 1999, the Salters brought Precious to

Respondent for emergency treatment. Precious was experienci ng

respiratory distress and had cyanotic mucous membranes

indicating a lack of oxygen. Her condition was growing worse

and life - threatening. Because of the emergency nature of

Precious' condition, Respondent immediately began a physical

examination of th e dog to determine what was causing her

inability to breath properly.

4. At the same time, Respondent began a series of notes on

Precious' record of treatment and examination. The notes

contained in the record of treatment and examination are clearly

p reliminary and hurried. Some of the writing is that of other

clinic staff. Most of the writing is Respondent's. The notes

are consistent with the frenetic nature of the emergency. They

included a checklist of various possible tests and treatments to

b e performed by Respondent or clinic staff, general impressions

of the dogs physical condition, and possible medical causes to

be ruled in or out (that is, tonsilar lymph nodes, soft palette

resection, and tonsillectomy). The record, while lacking some

inf ormation, does contain sufficient information to reflect

Precious' condition, diagnosis, and course of treatment.

5. Throughout the time Precious was at the clinic, the

clinic staff or Respondent performed the various tests and

treatments listed in the re cord of treatment. As each task was

completed the task was checked off the checklist and results

filled in, if possible. If it was not possible to fill in the

results on the record of treatment, results would be noted by

another method such as medical re ports, logs, or note cards.

6. In fact, Respondent makes notes regarding treatment,

results, etc., of a particular animal on index cards because the

larger, more formal veterinary record of an animal is often not

carried around to the different places wh ere an animal may be

located in the clinic. The index cards are small and can be

carried in Respondent's shirt pocket. Use of the cards was the

record keeping procedure taught to him while in veterinary

school at the University of Florida and is his prim ary

contemporaneous record for an animal. Information on the note

cards would later be recorded in an animal's permanent file.

Respondent followed this process with Precious. However,

Respondent's note cards for Precious are missing.

7. Respondent's entries in Precious' medical record

reflect some of the measures that were taken to save Precious'

life. One such measure was to place Precious on an IV of

lactated ringer solution (LRS in the record of treatment).

However, no amount of solution was list ed because when the note

was made, placement of the IV was a task to be done, and the

amount of solution would have been initially recorded on the

index cards for Precious once treatment was complete for later

entry in Precious' permanent record. Indeed t he amount of

solution was written on Respondent's note cards for Precious.

8. The physical examination of Precious revealed that she

had aspirated part of her mouth tissue in the epiglottis

pharyngeal area of her mouth. The loose tissue appeared to be

scar tissue from a previous operation or a tumor. Such loose

tissue is not uncommon in English bulldogs and was exacerbated

in Precious due to her obesity. Because the tissue was blocking

her airway, Precious was put under anesthesia for placement of

an intratrachial tube to open an airway, to complete a non -

invasive ultrasound examination and to begin preparation for

removal of the loose tissue.

9. Information on the type and amount of anesthesia was

kept in the controlled substances medication list a nd a missing

anesthesia log for heart and respiration, as well as the missing

index cards kept by Respondent.

10. After placement of the tube inside Precious' airway,

her condition began to improve. However, she was still in a

very critical, life - threa tening condition.

11. At 2:00 p.m. Precious went into cardiac arrest.

Epinephrine and Doxapram, medications used to control cardiac

arrest, were administered and cardio - pulmonary resuscitation was

performed. The amounts of the Epinephrine and Doxapram w ere not

recorded in the record of treatment but were recorded on the

missing note cards. Precious recovered from her cardiac arrest

and was somewhat responsive to external stimuli. However, she

was not aware of her surroundings and had dilated pupils. S he

did not recover from the coma and, subsequently, was euthanized

with the owners permission. Again the amount of euthanasia

solution was written on the Respondent's index cards.

12. Because of the monitoring Precious required during the

day and the o ther requirements of other patients at the clinic,

Respondent placed Precious' permanent veterinary record and his

index card notes on his desk so that he could permanently record

the information in Precious' permanent file. Respondent could

not finalize Precious' record until two days later because of

the work load at the clinic. However, when Respondent went to

finalize the record, he discovered that Precious' veterinary

record, along with his index card notes and various logs and

reports regarding Prec ious, had been stolen from his office.

The office and premises were thoroughly searched by Respondent,

his wife, and clinic staff. No records were found.

13. Approximately three weeks later, part of the

veterinary record reappeared at the clinic. Howeve r, it was

apparent that some records in the recovered file were altered or

were missing. The 3 x 5 index cards of Respondent's notes were

missing. The dog owner's standard consent form for procedures

on July 7, 1999, was missing and the original anesthes ia log was

missing. The anesthesia log, which was returned with the file,

was prepared by another person who did not perform clinical

tasks at the clinic. The log did not contain entries for heart

and respiration which had been made by either Respondent or his

assistant, Ric Berlinski. For unknown reasons a false log had

been substituted for the original log by whoever had taken or

had the file during its absence from the clinic.

14. Respondent reasonably did not trust his memory to

complete the veterina ry records on Precious. Respondent made a

decision not to change the recovered records in any manner lest

he be accused of altering the records knowing that other parties

may have copied the records in addition to removing and altering

certain records. H e felt not adding to the records was

reasonable since there was no future need for the records to

treat the deceased animal, the record would not be used in any

research and had no educational purpose. In fact, neither the

statute nor rules of the Board c ontain any guidance on the

action a veterinarian should take under circumstances where a

veterinarian, through no fault of his own such as theft, fire or

disaster, is prevented from completing or maintaining an

animal's veterinarian record.

15. In respons e to the Salters' complaint in regard to

Precious' treatment, Respondent was requested to provide Richard

Ward, the investigator for the Department of Business and

Professional Regulation, with records relating to Respondent's

treatment of Precious.

16. R espondent failed to inform Mr. Ward that Respondent

believed the records had been tampered with or that he believed

the medical records had been stolen. Respondent also failed to

provide Mr. Ward with the controlled substance log containing

the entries re lating to the treatment of Precious because he did

not ask for it. At the time, given the complaint, Respondent

did not wish to and did not think it prudent to speak with the

Department's investigator absent the advice of legal counsel.

Therefore, he did not tell the investigator about the problems

with the record. Respondent did not mislead the investigator

and did not violate any statute or rule of the Board.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the p arties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

18. Petitioner, through the Board of Veterinary Medicine,

is the state agency charged with regulating the practice of

veterinary medicine.

19. The Florida Board of Vet erinary Medicine is empowered

to impose discipline on a licensed doctor of veterinary medicine

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

455.225 and 474.214, Florida Statutes, or the rules promulgated

thereunder.

20. Petitioner ha s the burden of proof in a licensure

disciplinary proceeding to establish by clear and convincing

evidence the allegations contained in the Administrative

Complaint made against Respondent. Ferris v. Turlington , 510

So. 2d 292 (Fla. 1987); Evans Packing C ompany vs. Department of

Agriculture and Consumer Services , 550 So. 2d 112 (Fla. 1st DCA

1989); Sternberg v. Department of Professional Regulation, Board

of Medical Examiners , 465 So. 2d 1324, 1325 (Fla. 1st DCA 1985);

Kinney v. Department of State , 501 So . 2d 129, 133 (Fla. 5th DCA

1987); Hunter v. Department of Professional Regulation , 458

So. 2d 842, 844 (Fla. 2d DCA 1984). Evans Packing , 550 So. 2d

at 116, note 5, provides the following description pertinent to

the clear and convincing evidence stand ard:

That standard has been described as follows:

clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify

must be distinctly remembered; the evidence

must be precise and explicit and the

witnesses must be lacking in confusion as to

the facts in issues. The evidence must be

of such weight that it produces in the mind

of the trier of fact the firm belief of

[sic] conviction, without hesitancy, as to

the truth of the allegations sought t o be

established. Slomowitz v. Walker , _____ So.

2d 797, 800 (Fla. 4th DCA 1983).

21. Section 474.214(1)(ee), Florida Statutes, requires a

veterinarian to keep contemporaneously written veterinarian

medical records. Rule 61G18 - 18.002, Florida Administr ative

Code, requires that veterinarian medical records be kept for

three years from the date of last treatment and contain clinical

information pertaining to the patient with sufficient

information to justify the diagnosis or determination of her

health st atus and warrant any treatment recommended or

administered. The rule does not establish the form or format of

the records to be kept. There is no rule which covers records

which are lost, stolen or destroyed.

22. In this case, the evidence demonstrate d that

Respondent kept contemporaneous, written veterinarian records

when he wrote treatment information on Precious' record of

treatment and examination on 3 x 5 cards. While incomplete in

minute detail, the record as a whole does contain sufficient

clin ical information to justify the presenting complaint of

Precious, determination of health status, and course of

treatment. Moreover, since this dog was deceased, there was no

present need for more complete information to ensure proper

future treatment. T hese records have been and continue to be

maintained by Respondent. Therefore, Respondent, under these

very unusual circumstances, is not guilty of failing to keep

contemporaneous veterinarian medical records.

RECOMMENDATION

Base on the foregoing Findin gs of Facts and Conclusions of

Law, it is

RECOMMENDED:

That Petitioner enter a final order finding Respondent not

guilty and dismissing the Administrative Complaint.

DONE AND ENTERED this 4th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of September, 2002.

COPIES FURNISHED :

C. Robert Edewaard, Esquire

Post Office Box 2297

Gainesville, Florida 32602

Tiffany A. Short, Esquire

Charles F. Tunnicl iff, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Sherry Landrum, Executive Director

Board of Veterinary Medicine

Department of Business and

Professional Regulation

1940 North Mo nroe Street

Tallahassee, Florida 32399 - 0792

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

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.