02-004533PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Adel Assad, D.V.M. Status: Closed Recommended Order on Tuesday, October 14, 2003.

Summary: The Department proved that Respondent violated various provisions of Chapter 474, Florida Statutes, on 3 animals, including failing to practice veterinary medicine with care, operating on unlicensed premises, and failing to keep records.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case Nos. 02 - 4130PL

) 02 - 4533PL

ADEL N. ASSAD, D.V.M., ) 02 - 4830PL

)

Respondent. )

_ )

RECOMMENDED ORDER

Pursuant to notice, a hearing in the above - styled cause

was held before the duly - designated Administrative Law Judge

of the Division of Administrative Hearings, Stephen F. Dean,

on March 26 - 27, 2003, and April 9, 2003, in Ocala, Florida.

APPEARANCES

For Petitioner: Tiffany A. Short

Charles F. Tunnicliff

Assistant General Counsels

Department of Busin ess and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

For Respondent: Thomas V. Infantino, Esquire

180 South Knowles Ave nue, Suite 7

Winter Park, Florida 32789

ISSUE

Whether disciplinary action should be taken against

Respondent's license to practice veterinary medicine, license

number VM - 2404, based on the violations of Section 474.214(1),

Fl orida Statutes, as charged in three separate Administrative

Complaints filed against Respondent.

PRELIMINARY STATEMENT

On February 20, 2002, Petitioner filed a two count

Administrative Complaint, DBPR Case No. 2000 - 03098 (DOAH Case

No. 02 - 4533PL), agains t Respondent alleging violations of

Chapter 474, Florida Statutes. Count I of the Administrative

Complaint charged Respondent with a violation of Section

474.214(1)(r), Florida Statutes: being guilty of incompetence

or negligence by failing to practice v eterinary 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 vi olation

of Section 474.214(1)(f), Florida Statutes: violating any

provision of this chapter or Chapter 455, a rule of the board

or department.

On October 4, 2002, Petitioner filed a four count

Administrative Complaint, DBPR Case No. 2002 - 009926 (DOA H Case

No. 02 - 4130PL), against Respondent. Count I of the

Administrative Complaint charged Respondent with a violation

of Section 474.214(1)(r), Florida Statutes: 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. Count

II of the Administrative Complaint charged Respondent with a

violation of Section 474.2 14(1)(w), Florida Statutes:

practicing veterinary medicine at a location for which a valid

premises permit has not been issued when required under

Section 474.215. Count III of the Administrative Complaint

charged Respondent with a violation of Section 4 74.214(1)(ee),

Florida Statutes: failing to keep contemporaneously written

medical records as required by rule of the board. Count IV of

the Administrative Complaint charged Respondent with a

violation of Section 474.214(1)(v), Florida Statutes:

operatin g or managing premises that do not comply with

requirements established by rule of the board.

On November 8, 2002, Petitioner filed a three count

Administrative Complaint, DBPR Case No. 2002 - 010701 (DOAH Case

No. 02 - 4830PL), against Respondent. Count I ch arged Respondent

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

practicing veterinary medicine at a location for which a valid

premises permit has not been issued when required under

Section 474.215. Count II of the Administrative Complaint

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

Florida Statutes: 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 condition s and circumstances. Count III charged

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

Statutes: failing to keep contemporaneously written medical

records as required by rule of the board.

Respondent disputed the allegations contained in all

three Administrative Complaints and petitioned for a formal

administrative hearing involving disputed issues of material

fact in each case. Consequently, the cases were referred to

the Division of Administrative Hearings (DOAH) pursuant to

Section 120 .57(1), Florida Statutes. The cases were

consolidated at the DOAH on January 13, 2003.

During the hearing, Petitioner presented the testimony of

eleven witnesses: Sharon and James Leonard (owners of

“Rudy”); Dr. Mark Erik Perreault, D.V.M., and subsequen t

treating veterinarian for Rudy; Teresa McCartney; Dr. Mark

Hendon, D.V.M., and subsequent treating veterinarian for

“Puffy"; Richard B. Ward (Investigator for the Department of

Business and Professional Regulation); James Dispoto, Jr.;

James N. Dispoto a nd Elaine Dispoto (owners of "Cinnamon");

Dr. Kathleen Fleck, D.V.M., and subsequent treating

veterinarian for Cinnamon; and Dr. Jerry Alan Greene, D.V.M.,

as an expert witness. In addition, the deposition testimony

of Dr. K.C. Nayfield, D.V.M., as an exp ert witness, was

received. Petitioner offered Exhibits numbered 1 through 8

which were accepted into evidence.

Respondent presented the testimony of one witness:

Suzanne Assad, wife of Respondent. Respondent further

testified on his own behalf in all mat ters. Respondent

offered Exhibits numbered 1 through 5, which were accepted

into evidence.

One exhibit was received and catalogued as Administrative

Law Judge Exhibit One. In addition, judicial notice of

Chapter 455, and Section 61G18, Florida Administr ative Code,

was taken and the parties given notice thereof at the hearing.

The parties submitted proposed recommended orders which

were read and considered. All citations are to Florida

Statutes (2000) unless otherwise indicated.

This Recommended order wa s delayed first by the

preparation of the transcript and then by requests for

extension of time to file proposed recommended orders.

FINDINGS OF FACT

1. At all times pertinent to the allegations in these

cases, Respondent was a licensed veterinarian, ha ving been

issued license number VM - 2404, by the Florida Board of

Veterinary Medicine.

2. On March 18, 2000, Respondent performed a spay on

Rudy, a six - year - old cat owned by Sharon and James Leonard.

3. Respondent discharged Rudy to Sharon and James

L eonard on March 18, 2000. On the following day, when Rudy

was not feeling well, the family took Rudy to the emergency

clinic where she was seen and treated by Dr. Mark Erik

Perreault.

4. When seen by Dr. Perreault, Rudy was wobbly and

disoriented, and had pale mucous membranes. In addition,

Dr. Perreault observed hair sewn into Rudy's incision site.

Because the cat was very tender, it was anesthetized, and a

careful examination of the incision was made. That

examination revealed the incision had bee n closed with very

large suture material. Because of the cat's condition and his

observations, Dr. Perreault recommended and received approval

to re - open the incision, and conduct an exploratory operation.

5. This surgery revealed Respondent sutured Rudy’s

uterine stump leaving approximately one and a half inches of

tissue below the suture. This amount of "stump" is excessive

and leaves too much material to become necrotic. Respondent

had closed the skin and body wall incisions with excessively

lar ge suture material. Respondent secured the body wall and

skin incisions with only two throws (knots) in each closing

suture.

6. Both Dr. Perreault and Dr. Jerry Alan Greene

testified regarding standard of care. It is below the

standard of care to s ew hair into an incision site or allow

hair to become sewn into the incision site because it

contaminates the surgical site. It is below the standard of

care for veterinarians to use oversized suture material to

close the incision site because an excessiv ely large suture

leads to excessive inflammation as the body absorbs the

excessively large suture material. It is below the standard

of care for veterinarians to secure the skin and body wall

incisions with less than 5 to 6 throws on their sutures to

ensu re that the sutures do not loosen or become untied. The

potential problems of not using enough throws are exacerbated

by using larger suture material which is more likely to

loosen. It is below the standard of care to leave an

excessive amount of "stump" in the body cavity. An excess of

necrotic tissue causes excessive inflammation.

7. Pertaining to Rudy, Respondent’s records contain

the notation, "0.6 Ket." Respondent testified that this

indicated that he administered Ketaset.

8. Respondent’ s records do not indicate whether the

administration was intravenously, intramuscularly, or

subcutaneously. Respondent testified that he administered the

Ketaset intramuscularly.

9. It was below the standard of care for Respondent to

fail to indicate the amount of medication administered, i.e. ,

milligrams, cubic - centimeters, etc.; and to fail to indicate

the method of administration.

10. Respondent is the owner of V.I.P. Baseline clinic, a

veterinary establishment located at 505 Northeast Baseline

Ro ad, Ocala, Florida 34470.

11. On August 31, 2002, Teresa McCartney presented her

male, white Maltese dog, Puffy, to Respondent at V.I.P.

Baseline Pet Clinic for neutering.

12. Teresa McCartney owned no other male, white Maltese

dogs.

13. Respondent performed a neuter on Puffy at V.I.P.

Baseline Pet Clinic on August 31, 2002.

14. On August 31, 2002, V.I.P. Baseline Pet Clinic was

not licensed to operate as a veterinary establishment by the

State of Florida Board of Veterinary Medicine.

15. Teresa McCartney picked up Puffy from V.I.P.

Baseline Pet Clinic on August 31, 2002.

16. Puffy bled for approximately four days after the

neuter was performed.

17. On September 4, 2003, Teresa McCartney presented

Puffy to Dr. Mark Hendon for treat ment. Upon examination,

Puffy was bleeding from the prepuce and from the site of the

surgical incision. In addition, there was swelling

subcutaneously and intra - dermal hemorrhage and discoloration

from the prepuce to the scrotum. The animal indicated pa in

upon palpation of the prepuce, the incision site, and the

abdomen. Dr. Hendon presented the owner with two options: to

do nothing or to perform exploratory surgery to determine the

cause of the hemorrhage and bleeding.

18. The owner opted for explora tory surgery on Puffy,

and Dr. Hendon anesthetized and prepared the animal for

surgery. The sutures having been previously removed, upon

gentle lateral pressure, the incision opened without further

cutting. A blood clot was readily visible on the ventral

surface of the penis, running longitudinally the length of the

penis and incision area.

19. Dr. Hendon immediately went to the lateral margins

of the surgical field, where the spermatic vessels and cord

were ligated, and found devitalized and necrot ic tissue on

both sides of the surgical field which appeared to be

abnormal. He explored those areas and debrided the ligated

tissues, exposing the vessels and the spermatic cord which he

ligated individually. He then proceeded to examine the penis.

20. Dr. Hendon found upon examination of the penis a

deep incision into the penis which had cut the urethra,

permitting urine to leak into the incision site, causing the

tissue damage which he had debrided. Dr. Hendon had not used

a scalpel in the area of th e penis prior to discovering the

incised urethra in the area of the penis, and he could not

have been the cause of the injury.

21. Dr. Hendon catheterized Puffy, and closed the

incisions into the urethra and penis. Puffy recovered and was

sent home th e following day.

22. Drs. Hendon and Greene testified about the standard

of care in this case. It is below the standard of care to

incise the penis or urethra of a male dog during a neuter

because neither the penis nor the urethra should be exposed to

inc ision during a properly performed surgery.

23. Respondent’s medical record for Puffy did not

indicate the type of gas which was administered to Puffy or

that Ace Promazine was administered to Puffy.

24. Respondent's anesthesia logs reflect the animal w as

administered Halothane and administered Ace Promazine, a

tranquilizer.

25. Rule 61G18 - 18.002(4), Florida Administrative Code,

requires that a patient’s medical record contain an indication

of the drugs administered to a patient.

26. On September 13 , 2002, Department Inspector Richard

Ward conducted an inspection of V.I.P. Baseline Pet Clinic.

27. The inspection revealed that Respondent failed to

provide disposable towels.

28. It was further revealed that Respondent provided

insufficient ligh ts in the surgical area of the premises.

29. Finally it was revealed that Respondent did not have

an operational sink in the examination area of the premises.

30. Rule 61G18 - 15.002(2)(a)4.c., Florida Administrative

Code, requires that all veterinary est ablishments have sinks

and disposable towels in the examination area.

31. Rule 61G18 - 15.002(2)(b)2.d., Florida Administrative

Code, requires veterinary establishments that provide surgical

services to provide surgical areas that are well lighted.

32. On September 4, 2002, Elaine Dispoto presented her

male cat Cinnamon to Respondent at V.I.P. Baseline Pet Clinic,

located at 505 Northeast Baseline Road, Ocala, Florida 34470.

33. On September 4, 2003, Respondent practiced

veterinary medicine at V.I.P. B aseline Pet Clinic by providing

veterinary medical services to Cinnamon.

34. On September 4, 2003, V.I.P. Baseline Clinic was not

licensed by the State of Florida to operate as a veterinary

establishment.

35. Cinnamon was presented to Respondent with c omplaints

of vomiting and dilated eyes. The owner expressed concern

that the animal had been poisoned.

36. Respondent apparently accepted that the animal had

been poisoned, and formulated a plan of treatment, because he

gave the animal an IV and administ ered one cubic centimeter of

atropine to the animal, a common antidote for organophosphate

poisoning.

37. Respondent administered subcutaneously the IV's of

Ringer's lactate to the cat.

38. The owners picked up Cinnamon from Respondent,

having heard a television news report which was unfavorable

about Respondent.

39. Respondent gave the cat to Mr. James Dispoto, who

observed that the cat was not doing well, although Respondent

indicated that the cat was doing better. Mr. Dispoto was

sufficiently conc erned about the status of the cat that he

took the animal immediately to Ocala Veterinarian Hospital.

There the cat was examined by Dr. Fleck.

40. Dr. Fleck found that Cinnamon was in extreme

distress; lying on his side and non - responsive to stimuli. A

cursory examination indicated that the animal was very

dehydrated, approximately 10 percent, and passing yellow,

mucousy diarrhea, uncontrollably. His pupils were pinpoint

and non - responsive.

41. Upon calling Respondent, Respondent told Dr. Fleck

that on the first day he had treated Cinnamon, he had given

the cat atropine, dexamethasone, and lactated Ringer's

subcutaneously. On the second day, he had given the cat

another injection of dexamethasone, penicillin, and lactated

Ringer's subcutaneously.

42. Based upon her assessment of the animal, Dr. Fleck

wanted to get some blood work to establish what kind of state

the rest of the body was in and to start an IV. The owner's

consented, and blood was drawn and an IV drip started of

normal saline at 25 mil s per hour. While the blood work was

being started, the cat had a short seizure, and within five

minutes, had another bad seizure, going into cardiac arrest

and died.

43. A necropsy was performed which was unremarkable.

The only significant findings wer e that the cat was

dehydrated. There were indications the cat had received

fluids along the ventral midline. The bowels were totally

empty and there were no substances within the stomach,

intestines, or colon. There was slight inflammation of the

pancre as. Samples were taken of the pancreas, liver, kidney,

and lung. Analysis of these samples was inconclusive. A

cause of death could not be determined.

44. The clinical presentation was very indicative of

organic phosphate poisoning. Organophosphates a re the active

ingredient in certain common insect and garden poisons.

However, there were no findings that pin - pointed poisoning as

a cause of death.

45. Dr. Greene testified concerning his examination of

the files maintained on Cinnamon by Respondent. They

reflected Respondent administered one cubic centimeter of

atropine on the first day and another cubic centimeter on the

second day. Dr. Greene's testimony about the administration

of atropine is contradictory. He testified at one point that,

based on the cat's weight, a proper dose would be about 2.5

cubic centimeters and Respondent did not give enough; however,

his answer to a question on cross - examination later indicated

that the amount of atropine given was more in line with what

was administere d.

46. Respondent faced a bad set of alternatives in

treating Cinnamon. The cat presented with poisoning symptoms

and suggestions of poisoning by the owners. He could run

tests and try and determine exactly what was ailing the cat.

However, if he did this without treating the possible

poisoning, the cat might have died from the poison before he

determined what was wrong with the cat. He could begin to

treat the cat for poisoning based upon the owner's

representations, and perhaps miss what the cat's p roblem was.

He cannot be faulted for treating the most potentially deadly

possibility first.

47. It is noted that a full necropsy could not pinpoint

the cause of the animal's problem(s). While Respondent may

have run additional tests, they would not hav e been any more

revealing.

48. Atropine is the antidote for organophosphate

poisoning and is helpful in controlling vomiting. It is clear

from the file that Respondent's working diagnosis was

poisoning. He treated the cat with the appropriate drug in

ap proximately the correct dosage.

49. Dr. Greene testified that it was a deviation from

the standard of care not to administer fluids intravenously to

Cinnamon because an ill patient may not absorb fluids through

subcutaneous injection. Based upon Dr. Fleck's discussion of

the issues involved in administering fluids intravenously, it

does not appear nearly so clear cut as Dr. Greene suggests,

but is a matter of professional judgment.

50. Dr. Greene testified it was a deviation from the

standard of care to administer lactated Ringer's solution to

Cinnamon instead of sodium chloride or normal saline. Again,

the choice of normal saline versus lactated Ringer's is one of

professional judgment and not standard of care.

51. Dr. Greene opined that it was a d eviation from the

standard of care to administer only 300ml of fluids to

Cinnamon because 300ml is an insufficient amount of fluids to

treat for dehydration or to even sustain Cinnamon under the

circumstances. Dr. Greene assumed that the all of the

hydrati on was via "IV." The testimony was that the cat did

take some water orally; therefore, Dr. Green's predicate was

flawed.

52. Respondent administered dexamethsone to Cinnamon.

53. Respondent failed to indicate that he administered

dexamethasone in C innamon’s record.

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

to indicate the administration of dexamethasone in a patient’s

record.

55. Respondent administered penicillin to Cinnamon.

56. Respondent’s records for Cinnamon indicate that he

administered penicillin - streptomycin to Cinnamon.

57. Respondent's records for Cinnamon indicate that

Respondent did not check on the animal frequently, which,

given his condition and the multiple problems which the cat

was suffering, was a failure to render the standard of care

necessary.

CONCLUSIONS OF LAW

58. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding, pursuant to Sections 120.57.

59. Pursuant to Section 474.214(2), the Fl orida Board of

Veterinary Medicine is empowered to revoke, suspend, or

otherwise discipline the license of a licensee who is found

guilty of any of the grounds enumerated in Section 474.214(1).

60. Petitioner has the burden of proving by clear and

convinc ing evidence the allegations against Respondent.

Department of Banking and Finance, Division of Securities and

Investor Protection v. Osborne Stern and Company , 670 So. 2d

932 (Fla. 1996). Evans Packing , supra , 550 So. 2d 112, 116,

fn. 5, provides the fol lowing pertinent to the clear and

convincing evidence standard:

That standard has been described as

follows: [C]lear and convincing evidence

requires that the evidence must be found to

be credible; the facts to which the

witnesses testify must be distinct ly

remembered; the evidence must be precise

and explicit and the witnesses must be

lacking in confusion as to the facts in

issue. The evidence must be of such weight

that it produces in the mind of the trier

of fact the firm belief of (sic)

conviction, wi thout hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

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

61. In addition, the disciplinary action may only be

based upon the offenses specifically alleged in the

Admini strative Complaint. See 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).

62. Section 474.214(2), Florida Statutes, authorizes

Petitioner to discipline licensees or applicants in the State

of Florida and provides, in pertinent part, as follows:

When the Board finds any applic ant 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:(a) denial of

certification for examination or licens ure,

(b) revocation or suspension of a license,

(c) imposition of an administrative fine

not to exceed $5,000 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.

63. Section 474.214(1), Florida Statutes, provides, in

pertinent part, that the following acts constitute grounds for

which the disciplinary actions in subsec tion (2) may be taken:

(f) Violating any provision of this

chapter or chapter 455, a rule of the board

or department, or a lawful order of the

board or department previously entered in a

disciplinary hearing, or failing to comply

with a lawfully issued su bpoena of the

department.

(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 or

circumstances.

(v) Failing to keep the equipment and

premises of the business establishment in a

clean and sanitary condition, having

premises permit suspended or revoked

pursuant to s. 474.215, or operating or

managing premises that do not comply with

requirements established by rule of the

board.

(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

writte n medical records as required by rule

of the board.

64. Section 61G18 - 18.002, Florida Administrative Code,

states in pertinent part that:

(1) There must be an individual medical

record maintained on every patient examined

or administered to by a veter inarian.

* * *

(3) Medical records shall be

contemporaneously written and include the

date for each service performed. They shall

contain the following information: name of

owner agent; patient identification; record

of any vacc inations 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 or occur during the

examination or the treatment of an animal

or animals: clinical laboratory reports;

radiographs and their interpretation;

consultation; treatment - medical, surgical;

hospitalization, drugs prescr ibed,

administered, or dispensed; tissue

examination report, necropsy findings.

65. It is a deviation from Rule 61G18 - 15.002(2), Florida

Administrative Code, for veterinary establishments to operate

a facility without disposable towels, sufficient surg ical

lighting, or an operation sink in examination areas.

66. It is a deviation from Rule 61G18 - 18.002(4), Florida

Administrative Code, to fail to indicate the administration of

Ace Promazine or fail to indicate the type of “gas”

administered to Puffy i n Respondent’s medical record for

Puffy.

67. The Administrative Complaints charge Respondent with

three violations of Section 474.214(1)(r), Florida Statutes,

by failing to provide veterinary medical care to patients

Rudy, Puffy, and Cinnamon with that l evel of care, skill, and

treatment recognized as acceptable by reasonably prudent

veterinarians under similar circumstances. The Administrative

Complaints charge Respondent with two violations of Section

474.214(1)(ee) by failing to comply with Section 61 G18 -

18.002(3) and (4), and two violations of Section 474.214(1)(w)

by practicing veterinary medicine at a location for which a

valid premises permit has not been issued. Finally,

Respondent was charged with a violation of 474.214(1)(f) by

failing to compl y with Section 61G18 - 18.002(3) and (4),

Florida Administrative Code, and a violation of Section

474.214(1)(v) by operating a veterinary establishment which

does not meet the requirements set forth in Section 474.215.

68. Petitioner has proved by cle ar and convincing

evidence that Respondent violated Section 474.214(1)(r),

Florida Statutes, by being guilty of incompetence or

negligence in the treatment of Rudy by failing to practice

medicine with that level of care, skill, or treatment which is

recogn ized by a reasonably prudent veterinarian as being

acceptable under similar conditions and circumstances.

Respondent failed to properly prepare the surgical site on

Rudy and failed to use proper suturing technique in closing

Rudy’s incision. Respondent u sed inappropriately large suture

material to close Rudy’s incision and left excessive necrotic

tissue below the uterine suture on the uterine stump.

69. Petitioner has proven by clear and convincing

evidence that Respondent violated Section 474.214(1)(f) , by

failing to keep contemporaneously written medical records on

Rudy, as required by Rule 61G18 - 18.002(3) and (4), Florida

Administrative Code. Respondent failed to indicate the method

used to administer Ketamine to Rudy in his medical records.

70. Pe titioner has proved by clear and convincing

evidence that Respondent violated Section 474.214(1)(r), by

being guilty of incompetence or negligence by failing to

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

which is recognized by a reasona bly prudent veterinarian as

being acceptable under similar conditions or circumstances.

Respondent negligently incised the penis and urethra of Puffy

during a neuter procedure and failed to repair the negligent

incision. Respondent sutured Puffy’s incisi on with a poor

suture line and excessively large suture material.

71. Petitioner has proven by clear and convincing

evidence that Respondent violated Section 474.214(1)(w), by

practicing veterinary medicine at a location for which a valid

premises permit had not been issued. Respondent performed

veterinary medical services on Puffy at VIP Baseline Pet

Clinic when the clinic was not licensed as a veterinary

establishment by the State of Florida.

72. Petitioner has proven by clear and convincing

evidenc e that Respondent violated Section 474.214(1)(ee), by

failing to keep contemporaneously written medical records, as

required by rule of the board, by failing to comply with Rule

61G18 - 18.002(4), Florida Administrative Code. Respondent

administered “gas” a nd Ace Promazine to Puffy without

indicating so in Respondent’s medical record for Puffy.

Respondent, further, failed to indicate the length of time

which Puffy was under anesthesia in the medical record for

Puffy.

73. Petitioner has proven by clear an d convincing

evidence that Respondent violated Section 474.214(1)(v), by

operating and managing a veterinary establishment that that

did not comply with requirements established by rule of the

board. Respondent operated and managed V.I.P. Baseline Pet

Cli nic without: sufficient lighting in surgical areas, an

operation sink in examination areas, and disposable towels in

the clinic.

74. Petitioner has established by clear and convincing

evidence that Respondent violated Section 474.214(1)(w), by

practicing veterinary medicine at a location for which a valid

premises permit has not been issued. Respondent performed

veterinary medical services on Cinnamon at V.I.P. Baseline Pet

Clinic, a location for which no veterinary establishment

permit had been applied for or issued.

75. Petitioner has established by clear and convincing

evidence that Respondent violated Section 474.214(1)(r), by

being guilty of incompetence or negligence by failing to

practice veterinary medicine with that level of care, skill,

or t reatment which is recognized by a reasonably prudent

veterinarian as being acceptable under similar conditions or

circumstances. Respondent provided inadequate medical

treatment to Cinnamon.

76. Petitioner has established by clear and convincing

evid ence that Respondent violated Section 474.214(1)(ee), by

failing to keep contemporaneously written medical records, as

required by rule of the board, by failing to comply with

Section 61G18 - 18.002(3) and (4), Florida Administrative Code.

Respondent admini stered dexamethasone and Penicillin to

Cinnamon without indicating such administration in

Respondent’s medical record for Cinnamon.

PENALTY

77. Section 474.214(2) provides:

(2) When the board finds any applicant or

veterinarian guilty of any of the gr ounds

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 suspen sion of a license.

(c) Imposition of an administrative fine

not to exceed $5,000 for each count or

separate offense.

78. Rule 61G18 - 30.001, Florida Administrative Code,

provides, in part, the following guidelines that are pertinent

to this proceeding:

61G18 - 30.001 Disciplinary Guidelines.

(2) When the Board finds an applicant,

licensee, or permittee whom it regulates

under chapter 474, Florida Statutes, has

committed any of the acts set forth in

Section 474.214(1), Florida Statutes, it

shall issue a Final Order imposing

appropriate penalties which are set forth

in 474.214(2), Florida Statutes, using the

following disciplinary guidelines:

(f) The usual action of the Board shall be

impose a penalty of one (1) year probation

and a two thousand dollar ($2000.00)

administrative fine. In the case of a

subpoena or disciplinary order, the usual

action shall be to impose a period of

suspension and a four thousand dollar

($4000) administrative fine.

79. Rule 61G18 - 30.001, Florida Administrative Code,

pro vides that:

(4) Based upon consideration of

aggravating or mitigating factors present

in an individual case, the Board may

deviate from the penalties recommended in

paragraphs (1),(2) and (3) above. The Board

shall consider as aggravating or mitigating

fa ctors the following:

(a) The danger to the public;

(b) The length of time since the

violation;

(c) The number of times the licensee has

been previously disciplined by the Board;

(d) The length of time the licensee has

practiced;

(e) The actua l damage, physical or

otherwise, caused by the violations;

(f) The deterrent affect of the penalty

imposed;

(g) The affect of the penalty upon the

licensee’s livelihood;

(h) The Any effort of rehabilitation by

the licensee;

(i) The actual knowledge of the licensee

pertaining to the violation;

(j) Attempts by licensee to correct or

stop the violation or refusal by licensee

to correct or stop violation.

(k) Related violations against licensee in

another state including findings of guilt

or innocence, penalties imposed and

penalties served.

(l) Actual negligence of the licensee

pertaining to any violation.;

(m) Penalties imposed for related offenses

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

(n) Pecuniary benefit or self gain enuring

to li censee;

(o) Any other mitigating or aggravating

circumstances.

80. Petitioner argues the following aggravating

circumstances are present in this case: (1) Respondent

represents a danger to the public as evidenced by past final

orders disciplining R espondent and entered into evidence at

hearing; (2) Respondent has previously been disciplined seven

times by the Florida Board of Veterinary Medicine; (3)

Respondent has been practicing in the State of Florida since

October 1979 and should have been aware of the necessity to

comply with the Laws and Rules governing the practice of

Veterinary Medicine; (4) Respondent’s actions cause actual and

serious medical trauma to the patients involved; (5)

Respondent had actual knowledge of the seriousness of the

circ umstances and yet failed to respond in an appropriate

manner; (6) Respondent’s conduct constitutes actual negligence

which caused the violations charged; and (7) the penalty

requested by Petitioner will have a significant deterrent

effect on Respondent. T he facts support the existence of all

these factors but number (5) above, which is vague.

81. Section 474.214(2)(g) authorizes Petitioner to assess

costs of investigation and prosecution, in addition to the

penalties provided above. Petitioner has submitted an

affidavit listing all costs related to investigation and

prosecution of the administrative complaint in the amount of

$5.697.96.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law reached, it is

RECOMMENDED:

That the Board enter its final order:

1. Finding that Respondent violated the standard of care

in treating Rudy, Puffy, and Cinnamon, contrary to Section

474.214(1)(r), and imposing an administrative fine upon

Respondent of $2,000 for each violation ;

2. Finding that Respondent violated the requirement to

keep adequate records with regard to Rudy, Puffy, and

Cinnamon, contrary to Section 474.214(1)(ee), and imposing an

administrative fine upon Respondent of $1,000 for each

violatio n;

3. Finding that Respondent violated the requirement to

obtain a license for a premises, contrary to Rule 61G18 -

15.002(2), Florida Administrative Code, which is a violation

of Section 474.214(1)(f), and imposing an administrative fine

upon Respondent o f $2,000;

4. Finding that the record of Respondent's previous

violations and the violations found above reflect that he is

unqualified and unfit to practice veterinary medicine in the

State of Florida, and revoking immediately his license,

without leave t o reapply;

5. Requiring Respondent to pay costs incurred in the

investigation and prosecution of these cases in the amount

$5,697.96, plus the costs incurred at the final hearing; and

6. Opposing any effort by Respondent to practice

veterinary med icine while an appeal in this case is taken.

DONE AND ENTERED this 14th day of October, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

STEPHEN F. DEAN

Administrative Law Judge

Division of Admini strative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of October, 2003.

COPIES FURNISHED :

Charles F. Tunnicliff, Esquire

Tiffany A. Short, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 2202

Thom as V. Infantino, Esquire

180 South Knowles Avenue, Suite 7

Winter Park, Florida 32789

Sherry Landrum, Executive Director

Board of Veterinary Medicine

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Nancy Campiglia, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 2399 - 2202

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptio ns 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.