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.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 08-1606PL

)

THANDAVESHWAR MYSORE, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

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

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

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

video teleconference at sites in West Palm Beach and

Tallahassee, Florida.

APPEARANCES

For Petitioner: Elizabeth Duffy

Assistant General Counsel

Sherria Williams

Qualified Representative

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

For Respondent: Martin McDonnell, Esquire

Rutledge, Ecenia & Purnell, P.A.

215 South Monroe Street, Suite 420

Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

The issues in this case are whether the Respondent,

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

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

filed by the Petitioner Department of Business and Professional

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

should be imposed.

PRELIMINARY STATEMENT

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

was filed with the Department of Business and Professional

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

Respondent had committed violations of Chapter 474, Florida

Statutes (2004). In particular, Petitioner alleged that

Respondent, a Florida licensed veterinarian had violated the

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

Florida Statutes (2004)(Count Two).

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

of Rights Form requesting a formal hearing to contest the

allegations of fact contained in the Administrative Complaint.

The Administrative Complaint and Respondent's request for

hearing were filed with the Division of Administrative Hearings

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

an administrative law judge. The request was designated DOAH

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

The final hearing of this matter was initially scheduled

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

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

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

final hearing was scheduled for November 4, 2008.

At the commencement of the final hearing, the parties filed

a Joint Prehearing Stipulation. The Joint Prehearing

Stipulation contains certain “Admitted Facts.” To the extent

relevant, those facts have been included in this Recommended

Order.

During the final hearing, Petitioner presented the

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

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

admitted. Respondent testified in his own behalf and presented

the testimony of Ricky Joe King and Alberta Finocio Cruz.

Respondent’s Exhibits numbered 1 and 2 were admitted.

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

was described during the hearing to the extent relevant to this

matter. Three Joint Exhibits were admitted.

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

the Division of Administrative Hearings on November 26, 2008.

By agreement of the parties, proposed recommended orders were to

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

Transcript was entered informing the parties of the filing of

the Transcript and due date for proposed recommended orders.

Respondent filed Respondent, Thandaveshwar Mysore’s

Proposed Recommended Order on December 29, 2008. Petitioner

filed Petitioner’s Proposed Recommended Order on December 30,

2008. On January 6, 2009, Respondent filed a Motion to Strike

Untimely Proposed Recommended Order. Other than arguing that

“Petitioner had an opportunity to study Respondent’s timely

filed Proposed Recommended Order,” Respondent has not suggested

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

Recommended Order. While Respondent is correct in asserting

that Petitioner had an opportunity to review his proposed

recommended order during the approximately 21 hours and 39

minutes that passed after Respondent’s proposed recommended

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

the conclusion that Petitioner took advantage of this

opportunity. Therefore, there being no showing of any prejudice

to Respondent, the Motion is hereby denied. The proposed

recommended orders have been fully considered in entering this

Recommended Order.

All references to Florida Statutes and the Florida

Administrative Code in this Recommended Order are to the 2004

version unless otherwise indicated.

FINDINGS OF FACT

A. The Parties .

1. Petitioner, the Department of Business and Professional

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

state agency charged with the duty to regulate the practice of

veterinary medicine in Florida pursuant to Chapters 455 and 474,

Florida Statutes.

2. At the times material to this proceeding, Thandaveshwar

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

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

Florida as a veterinarian for approximately 20 years.

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

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

Florida 33410.

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

taught veterinary medicine as an associate and assistant

professor for approximately 19 years prior to moving to the

United States. He has published more than 50 articles in

veterinary journals.

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

practice was exclusively small animals, primarily dogs and cats.

He has successfully performed thousands of spays on dogs and

cats without incident.

B. Dr. Mysore’s Treatment of Ricochet .

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

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

and/or neutered by Dr. Mysore.

7. Having examined Ricochet, Dr. Mysore sedated her

pursuant to his normal protocol and performed a routine surgical

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

of occasions, witnessed the procedure. The surgical area was

cleaned by Dr. Mysore with Betadine and alcohol.

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

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

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

in particular, hair.

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

area on Ricochet had been properly cleaned and prepared.

Neither noticed any hair inside the incision in Ricochet at any

time prior to or during closure of the incision.

10. Following the procedure, Ms. Gruskin came to

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

concerning Ricochet’s condition at that time conflicted, the

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

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

of the office.

11. While taking Ricochet to her vehicle Ms. Gruskin

noticed what she believed was blood oozing from the incision.

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

normal and told her not to worry about it.

C. Dr. Brinkman’s Treatment of Ricochet .

12. Following the October 13th surgical procedure,

Ricochet was lethargic and had little appetite. The incision

was inflamed and oozed blood and puss. Concerned about

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

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

13. Dr. Brinkman examined Ricochet. Ricochet’s

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

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

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

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

recently undergone the surgery, recommended that no surgery be

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

Dr. Brinkman began a treatment with antibiotics.

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

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

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

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

Ms. Gruskin agreed to.

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

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

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

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

the incision not having been property closed.

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

grapefruit.

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

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

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

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

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

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

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

infected, necrotic tissue and closed the incision. On

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

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

an uneventful recovery from the surgery performed by

Dr. Brinkman.

D. Ultimate Findings .

19. While no one witnessed precisely how the hairs found

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

inside Ricochet, the only logical conclusion that can be reached

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

site when Dr. Mysore performed the spay on Ricochet on

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

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

other plausible explanation.

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

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

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

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

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

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

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

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

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

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

before the incision was sutured.

21. The foregoing findings are further supported by

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

under which the hairs could have gotten between Ricochet’s

abdominal muscles and skin.

22. It is also found that the tissue discovered by

Dr. Brinkman inside the incision cavity was necrotic tissue and

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

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

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

description of the tissue he found inside Ricochet when he

performed his surgical procedure.

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

by the presence of the hair left inside the incision by

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

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

E. Dr. Mysore’s Medical Records .

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

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

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

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

25. Ricochet was also identified by species and breed

(although not with consistency) in the Surgery Authorization

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

services.

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

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

temperature had been within the normal range, his failure to

record her temperature would not have caused any “damage per

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

normal part of the required physical examination of the animal,

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

records.

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

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

medical records that the drugs were given and recorded the

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

not describe in the medical records the amount of the individual

dosages of the two drugs given to Ricochet.

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

of Veterinarian Products, which essentially lists drugs used by

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

the drug, it can be determined how much Atropine was

administered to Ricochet and that amount can then be subtracted

from the total drugs given to determine the amount of

Acepromozine. Although there are different strengths of

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

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

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

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

amount can then be subtracted from the total to determine the

amount of Acepromozine administered.

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

First, it cannot be determine from the medical records that

Dr. Mysore even relied upon the Compendium. Without this

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

suggested by Dr. Mysore. Although many veterinarians rely upon

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

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

did in this matter.

30. Secondly, although veterinarians may rely generally

upon information contained in the Compendium, there is no

requirement that a veterinarian strictly adhere to the suggested

dosages information contained therein. Therefore, even it were

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

dosage for Atropine contained in the Compendium, it cannot be

assumed that he followed the suggestion.

CONCLUSIONS OF LAW

A. Jurisdiction .

31. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

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

Florida Statutes (2008).

B. The Burden and Standard of Proof .

32. In the Administrative Complaint, the Department seeks

to impose penalties against Dr. Mysore, including suspension or

revocation of his license and/or the imposition of an

administrative fine. The Department, therefore, has the burden

of proving the allegations of the Administrative Complaint by

clear and convincing evidence. Department of Banking and

Finance, Division of Securities and Investor Protection v.

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

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

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

1st DCA 1995).

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

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

1989), the court defined "clear and convincing evidence" 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 distinctly 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 or

conviction, without hesitancy, as to the

truth of the allegations sought to be

established. Slomowitz v. Walker , 429 So.

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

C. The Charges Against Dr. Mysore .

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

Board of Veterinary Medicine (hereinafter referred to as the

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

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

practice veterinary medicine in Florida if a licensee commits

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

Statutes.

35. In the Administrative Complaint issued in this case,

the Department has alleged that Dr. Mysore committed the

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

Florida Statutes.

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

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

following disciplinable offense:

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.

37. In paragraph 25 of the Administrative Complaint, the

Department has alleged that Dr. Mysore committed the foregoing

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

improper control of necrotic tissue.”

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

violated the Standard of Care as alleged in the Administrative

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

had violated the Standard of Care as alleged in the

Administrative Complaint, was convincing and compelling.

Whether his opinion that Dr. Mysore violated the Standard of

Care by failing to adequately prepare Ricochet’s surgical site

should be credited hinges on whether the facts he relied upon

were proved clearly and convincingly. In particular,

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

clearly and convincingly that an extraordinary amount of loose

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

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

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

Standard of Care by failing to control necrotic tissue hinges on

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

caused by hair left inside the incision.

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

and convincingly that there was a large amount of loose hair

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

uncontroverted testimony of Dr. Brinkman.

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

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

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

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

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

incision.

41. Had Dr. Mysore adequately prepared and managed

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

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

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

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

opinion that Dr. Mysore violated the Standard of Care by

inadequate surgical site preparation is, therefore, supported by

the facts he relied upon.

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

finding that there was necrotic tissue inside Ricochet’s

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

large amount of hair inside the incision, the infection and

resulting necrotic tissue found by Dr. Brinkman would not have

occurred. While the allegation contained in the Administrative

Complaint on this issue could have been written more clearly and

precisely (as written, it suggests that after necrotic tissue

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

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

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

of hair, necrotic tissue developed).

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

Standard of Care by inadequate necrotic tissue control is,

therefore, supported by the facts he relied upon.

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

Department proved clearly and convincingly that Dr. Mysore

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

Count One of the Administrative Complaint.

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

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

following disciplinable offense: “Failing to keep

contemporaneously written medical records as required by rule of

the board .”

46. In paragraph 28 of the Administrative Complaint, the

Department has alleged that Dr. Mysore committed the foregoing

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

to indicate its temperature, and failing to adequately record

drug measurements.”

47. The Board has established requirements for the

maintenance of veterinary medical records in Florida

Administrative Code Rule 61G18-18.002 (hereinafter referred to

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

are required to be maintained in Florida Administrative Code

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

There must be an individual medical record

maintained on every patient examined or

administered to by the veterinarian, except

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

not less than three years after date of last

entry. The medical record shall contain all

clinical information pertaining to the

patient with sufficient information to

justify the diagnosis or determination of

health status and warrant any treatment

recommended or administered.

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

more specific information be maintained in a veterinary medical

record:

(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 or 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

49. In its Administrative Complaint, the Department has

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

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

temperature, and sufficient detail concerning medications

provided her during surgery. In Petitioner’s Proposed

Recommended Order, the Department has failed to suggest which

particular section of Florida Administrative Code Rule 61G18-

18.002(3) and/or (4) Dr. Mysore violated.

Breed and Species

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

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

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

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

51. Ricochet was also identified by species and breed

(although not consistently) in the Surgery Authorization form

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

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

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

been cited to support his conclusion. While the Records Rule

requires that medical records are to contain “patient

identification” information, the Records Rule is not precise

enough to put a veterinarian on notice as to precisely where

patient identification information must be maintained.

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

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

by failing to identify or describe the animal.

Temperature

54. The Records Rule requires that veterinary medical

records record information concerning any “[p]hysical

examination” of the animal. An appropriate physical examination

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

record Ricochet’s temperature in his medical records.

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

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

failing to record Ricochet’s temperature.

Medications

56. The Records Rule requires that medical records include

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

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

name and total combined dosage dispensed. It cannot be

determined from his medical records alone the amount of each

drug given to Ricochet.

57. Although the Records Rule could be more precise what

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

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

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

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

refuted by any other expert opinion.

58. While identifying the type of drugs administered to an

animal is clearly crucial in ensuring the proper care of the

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

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

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

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

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

while he may have personally have known how to calculate the

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

records he produced.

59. Based upon the foregoing, it is concluded that

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

failing to record separate amounts of the drugs Atropine and

Acepromazine given to Ricochet.

F. The Appropriate Penalty .

60. In determining the appropriate punitive action to

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

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

and limitations on the exercise of the Board's disciplinary

authority under Section 474.214, Florida Statutes. See Parrot

Heads, Inc. v. Department of Business and Professional

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

61. The Board's guidelines for violations of Section

474.214, Florida Statutes, are set out in Florida Administrative

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

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

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

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

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

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

474.214(1)(ee), Florida Statutes, Florida Administrative Code

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

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

63. The Department has requested penalties in this case

consistent with these guidelines. The Department has not,

however, considered the aggravating and mitigating circumstances

provided for the Board’s consideration pursuant to Florida

Administrative Code Rule 61G18-30.001(4):

(4) Based upon consideration of

aggravating or mitigating factors present in

an individual case, the Board may deviate

from the penalties recommended in

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

Board shall consider as aggravating or

mitigating factors 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 licensee has

practiced;

(e) The actual damage, physical or

otherwise, caused by the violation;

(f) The deterrent affect of the penalty

imposed;

(g) The affect of the penalty upon the

licensee’s livelihood;

(h) 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 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 licensee;

(o) Any other relevant mitigating or

aggravating factors under the circumstances.

64. Taking into account the mitigating and aggravating

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

Florida Statutes, it is concluded that the penalty guideline is

appropriate in this case.

65. Taking into the mitigating and aggravating

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

Florida Statutes, it is concluded that the penalty guideline is

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

proved two of the alleged record keeping violations and given

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

$500.00 and the costs of the investigation for this violations

are more appropriate penalties.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

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

violations described in this Recommended Order, placing his

license to practice veterinary medicine on probation for a

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

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

within 30 days of the entry of the final order.

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

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

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 12th day of January, 2009.

COPIES FURNISHED :

Martin P. McDonnell, Esquire

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

Post Office Box 551

Tallahassee, Florida 32302

Charles Tunnicliff, Esquire

Department of Business &

Professional Regulation

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2202

Elizabeth F. Duffy, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399-2202

Juanita Chastain, Executive Director

Board of Veterinary Medicine

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Ned Luczynski, General Counsel

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.