10-002386PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Robin L. Cannizzaro, D.V.M. Status: Closed Recommended Order on Wednesday, October 13, 2010.

Summary: Petitioner established Respondent's medical records inadequate otherwise failed to prove by clear and convincing evidence that Respondent violated standard of care or committed fraud in charges for records

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF VETERINARY MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 10 - 2386PL

)

ROBIN L. CANNIZZARO, D.V.M. , )

)

Respondent . )

)

RECOMMENDED ORDER

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

before J. D. Parrish, an Administrative Law Judge of the

Division of Administrative Hearings, on July 13, 2010, by video

teleconference at sit es in Tampa and Tallahassee, Florida.

APPEARANCES

For Petitioner: Elizabeth F. Duffy, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street , Suite 42

Ta llahassee, Florida 32399 - 2202

For Respondent: Bryan W. Reynolds, Esquire

Reynolds Stowell Parrino, P.A.

8700 Fourth Street , North

St. Petersburg, Florida 33702

STATEMENT OF THE ISSUE S

The issue s in t his case are whether Respondent, Robin L.

Cannizzaro, D . V . M . (Respondent), committed the violations

alleged in the Administrative Complaint dated July 13, 2009,

and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Bus iness and Professional

Regulation (Petitioner or the Department), on behalf of the

Board of Veterinary Medicine (the Board), filed a three - count

Administrative Complaint against Respondent on July 13, 2009.

Petitioner alleged Respondent violated provision s of

Chapter 474, Florida Statutes (2009). 1 More specifically,

Petitioner claimed Respondent violated S ubs ection 474.214(1)(r),

Florida Statute s , by continuing restraint on a cat after

20 minutes of struggle to acquire a blood sample. Petitioner

allege d this behavior violated the law and demonstrated

incompetence or negligence by failing to practice medicine with

the level of care, skill, and treatment that a reasonably -

prudent veterinarian would recognize as acceptable under similar

conditions and circ umstances. Secondly, Petitioner averred

Respondent violated S ubs ection 474.214(1)(y)3 . , Florida

Statutes , by failing to properly annotate required information

in the medical records for the subject cat. Finally, Petitioner

maintained Respondent violated S ubs ection 474.214(1)(m), Florida

Statutes , by overcharging for copies of records kept for the

subject cat. Respondent timely challenged all factual

allegations.

The case was forwarded to the Division of Administrative

Hearings (DOAH) for formal proceedin gs on April 30, 2010.

Thereafter , the case was scheduled for hearing on a date

suggested by the parties , and the matter proceeded to hearing.

At the hearing, Petitioner presented testimony from Diane

Weigandt and Jerry Alan Greene, D.V.M. PetitionerÓs

Exhibits 1 through 5 were received in evidence. Respondent

testified on her own behalf and offered the testimony of Sidney

Storozum, D.V.M., and Jennifer Truong.

A one - volume T ranscript of the proceeding was filed with

DOAH on August 17, 2010. Thereafter , the parties were afforded

ten days within which to file their p roposed r ecommended o rders.

Both parties timely filed proposed orders that have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the state age ncy with the duty to

regulate the practice of veterinary medicine in Florida pursuant

to Chapters 455 and 474, Florida Statutes.

2. At all times material to the allegations of this case,

Respondent was a licensed veterinarian in Florida fully

authorized t o practice veterinary medicine. Respondent has been

licensed since 1991 and holds license number VM 5903.

3. At all times material to the allegations of this case,

RespondentÓs address has been 26139 Halsey Road, Brooksville,

Florida.

4. At all times material to the allegations of this case,

Diane Weigandt was the owner of the cat known in this record as

ÐMaddie.Ñ Maddie was a young cat , and Ms. Weigandt took her to

RespondentÓs office on or about April 7, 2008. Ms. Weigandt

wanted to have Maddie spa yed , but another veterinarian had

declined to do so because the preoperative blood work indicated

an elevated liver enzyme ( ALT ) . During the course of the visit

with Respondent , it was determined that Maddie should have a

blood draw to test, among other t hings, MaddieÓs ALT. It was

expected that , if the enzyme were within or close to a normal

range , Maddie could have the procedure.

5. Respondent decided a draw from MaddieÓs jugular vein

was needed based upon the volume of the sample required to

perform the tests. The selected site of the blood draw is not

in dispute. The site of the draw did, however, cause Maddie to

react uncooperatively.

6. In order to make the blood draw, Respondent determined

that Maddie would have to be restrained. It is not un common for

cats to resist this procedure. Most pets, in fact, are not

cooperative with jugular blood draws. During the first attempt

to draw the blood, RespondentÓs assistant held Maddie by the

scruff of her neck on her side with her legs pinned. This

p osition did not contain the struggling feline.

7. As Maddie struggled to avoid the blood draw, Respondent

made several attempts, using four different syringes, to acquire

the sample. Approximately half - way through the procedure,

RespondentÓs assistant taped MaddieÓs legs together so that they

were further restrained. Between each attempt to draw blood,

Maddie was afforded a break. ÐBreakÑ meaning a brief

intermission from the struggle that ensued each time Respondent

attempted to draw blood.

8. After approximately 20 minutes, Respondent obtained a

small sample , but Maddie collapsed at the end of the blood draw.

Respondent quickly performed CPR and was able to revive Maddie

and get her stabilized within a short period of time. At the

conclusion of th e visit , Respondent referred Ms. Weigandt to a

specialist to deal with Maddie. Respondent advised Ms. Weigandt

that another doctor needed to rule out a pulmonary or cardiac

medical condition for MaddieÓs collapse. Had Maddie not

appeared stable, Responde nt would not have sent the cat on her

way.

9. When Ms. Weigandt presented at the second

veterinarianÓs office, Respondent faxed the results of the blood

draw taken earlier to the second veterinarian. Ms. Weigandt was

advised that another blood draw would be necessary as the

specimen from RespondentÓs office was compromised. It is not

disputed that the second veterinari an advised Ms. Weigandt that

RespondentÓs blood draw was inadequate for the purposes needed.

Respondent acknowledged that the blood draw was hemolyzed , but

averred that most of the tests were nevertheless valid.

10. The compromised blood draw could have resulted from a

number of conditions. First, due to the numerous attempts to

draw blood, a hematoma appeared at the draw site. A hematom a is

a collection of blood outside the blood vessel, either in the

subcutaneous tissue or in the muscle surrounding the vein. When

blood is drawn through a hematoma , there can be a breakdown of

the red blood cells. Additionally, myoglobin or muscle fluid

from the muscle surrounding the vein may also contaminate the

sample. Finally, if the draw is done after the animal has eaten

(a non - fasting draw), the sample may be lipemic. Lipemic refers

to fat appearing in the blood that will show up anywhere from

t wo to six hours after eating. Any of the conditions noted can

adversely affect a blood draw and leave the sample compromised.

In the instant case, approximately half of the tests performed

on MaddieÓs sample drawn by Respondent were deemed inaccurate or

insufficient for medical purposes.

11. After consideration of the circumstances and

effectiveness of RespondentÓs blood draw for Maddie,

Ms. W eigandt challenged the credit card payment she made to

Respondent for the blood testing. Admitting no error in

treatment or procedure, Respondent allowed the challenge and

voluntarily withdrew the charge. Respondent believed this was a

gesture of goodwill and not an admission of any wrong - doing.

12. Subsequently, Ms. Weigandt requested that Respondent

provide her copies of MaddieÓs medical records. To that end ,

Respondent gave Ms. Weigandt the option of having the records

faxed to her new veterinarian at no charge or picking up a copy

of the records for which she would be expected to pay a fee.

Ms. Weigandt chos e the latter option , as she wanted to keep a

personal copy of her petsÓ records.

13. As it turned out, Ms. Weigandt was, in effect, seeking

the records for all of her pets/patients for whom Respondent had

provided services. The seven petsÓ records were m aintained

under Ms. WeigandtÓs name and were copied and provided to the

owner/client. Respondent charged Ms. Weigandt $55.00 for

55 pages of records. The form verification of completeness

executed by RespondentÓs assistant provided that the records for

Maddie constituted 32 pages.

14. In this case , Respondent kept a file for

Ms. WeigandtÓs pets based upon the ownerÓs name and information.

Within the single file , Respondent maintain ed pet data

identified by pet name with treatment notes, medications, and

other pertinent information. Respondent maintained the record

for the seven pets owned by Ms. Weigandt and kept notes for

office visits, telephone consultations, and other matters

identified by pet name.

15. Pertinent to this case, RespondentÓs not ation for

Maddie for the date of the blood draw indicated ÐWNL.Ñ The

specifics of MaddieÓs temperature, heart rate or respiration

were not stated. ÐWNLÑ is short - hand for Ðwithin normal

limits.Ñ Data for MaddieÓs weight, considered a basic Ðvital,Ñ

was not provided. Instead, RespondentÓs note provided, Ðseems

undersized for age.Ñ

16. The process Respondent used to attempt a blood draw

from MaddieÓs jugular vein is within the standard of care for

such procedures. As to both the site of the draw and the

restraint used to obtain a sample, RespondentÓs conduct was

within a standard of care to be expected given the combative

nature of the patient. In all likelihood, given the totality of

the situation, Maddie experienced a vagal bradycardia that was

quickl y and appropriately addressed by Respondent. Maddie was

resuscitated in an appropriate manner and stabilized before

being released.

17. As to the medical records retained by Respondent, it

is determined that such records did not contain the data and

info rmation expected and required by the standard in Florida.

Pertinent information concerning MaddieÓs pre - procedure

condition was not noted.

18. Finally, as to the charges imposed for the copying of

MaddieÓs medical record, it is determined that , pursuan t to the

rule, Respondent was allowed to charge $26.75 for MaddieÓs

record. Ms. Weigandt requested and obtained records for six

other animals. Presumably, the $55.00 charged for such records

covered not fewer than 23 pages of records. Assuming Responden t

was entitled to charge $1.00 for each of those pages, Respondent

would have been authorized to charge $49.75 for the records.

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding an d

of the parties thereto , pursuant to Section 120.569 and

Subsection 120.57(1), Florida Statutes (2010) .

20. As alleged by Petitioner, the Board seeks to impose

penalties on Respondent that may include probation, suspension,

revocation of license, and/or the imposition of an

administrative fine. Accordingly, Petitioner bears the burden

of proof in this cause to establish, by clear and convincing

evidence, that Respondent committed the alleged violations of

law. See Department of Banking and Finance, Div ision of

Securities and Investor Protection v. Osborne Stern and Co. , 670

So. 2d 932 (Fla. 1996) , and Ferris v. Turlington , 510 So. 2d 292

(Fla. 1987).

21. ÐClear and convincing evidence,Ñ as defined in Evans

Packing Co. v. Department of Agriculture and C onsumer Services ,

550 So. 2d 112, 116, n. 5 (Fla. 1 st DCA 1989), 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 m ust 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. Slo mowitz v. Walker , 429 So.

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

22. The Board may impose administrative sanctions against

any licensee found to be in violation of law. That authority is

found in S ubs ection 474.214(2), Florida Statutes. The acts

constituting vi olations of law are enumerated and identified in

S ubs ection 474.214(1), Florida Statutes. Pertinent to t his case

are the following alleged violations:

474.214 Disciplinary proceedings. --

(1) The following acts shall constitute

grounds for which the di sciplinary actions

in subsection (2) may be taken:

* * *

(m) Fraud in the collection of fees from

consumers or any person, agency, or

organization paying fees to practitioners.

* * *

(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.

* * *

(y) Using the privilege of ordering,

presc ribing, or making available medicinal

drugs or drugs as defined in chapter 465, or

controlled substances as defined in chapter

893, for use other than for the specific

treatment of animal patients for which there

is a documented veterinarian/client/patient

relationship. Pursuant thereto, the

veterinarian shall:

1. Have sufficient knowledge of the animal

to initiate at least a general or

preliminary diagnosis of the medical

condition of the animal, which means that

the veterinarian is personally acquaint ed

with the keeping and caring of the animal

and has recently seen the animal or has made

medically appropriate and timely visits to

the premises where the animal is kept.

2. Be available or provide for follow - up

care and treatment in case of adverse

re actions or failure of the regimen of

therapy.

3. Maintain records which document patient

visits, diagnosis, treatment, and other

relevant information required under this

chapter.

23. Florida Administrative Code Rule 61G18 - 18.002,

Maintenance of Medic al Records, provides:

(1) 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 med ical 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 .

(2) When a veterinarian is providin g

services to a client owning or leasing 10 or

more animals of the same species at a

location where the client keeps the animals,

one medical record may be kept for the group

of animals. This record must include the

species and breed of the animals, and t he

approximate number of the animals in the

group. However when one specific animal is

treated, the record must include the

identification, diagnosis, and treatment

regime of the individual animals examined

and treated at each visit to the location,

as we ll as all other information required by

this rule.

(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

Reco rd 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 - Î medical, surgical

Hospitalization

Dru gs prescribed, administered, or dispensed

Tissue examination report

Necropsy findings

(5) A veterinarian shall maintain

confidentiality of all patient records in

his/her possession or under his/her control.

All patient records shall not be disclosed

wi thout the consent of the client.

Appropriate disclosure may be made without

such consent:

(a) in any civil or criminal action, unless

otherwise prohibited by law, upon the

issuance of a subpoena from a court of

competent jurisdiction and proper notice b y

the party seeking such records to the client

or his/her legal representative;

(b) when required by the Board's rules.

(6) A veterinarian shall, upon a written

request, furnish, in a timely manner without

delays for legal reviews, a true and correct

c opy of all of the patient records to the

client, or to anyone designated by the

client. Such records release shall not be

conditioned upon payment of a fee for

services rendered, except for the reasonable

cost of duplication.

(7)(a) Reasonable costs of duplication of

written or typed documents or reports shall

not be more than $1.00 per page for the

first 25 pages, and shall not be more than

25 cents per page for each page in excess of

25 pages.

(b) Reasonable costs of reproducing x - rays,

and such othe r special kinds of records

shall be the actual costs. The phrase

"actual costs" means the cost of the

material and supplies used to duplicate the

record, as well as the labor costs and

overhead costs associated with such

duplication.

(8) It is understoo d that there may be

several files in different locations.

Sufficient cross indexes are to be

maintained for prompt retrieval when

required.

(9) Medical records may be maintained in an

easily retrievable electronic data format;

however, the licensee shall be responsible

for providing an adequate backup system to

assure data is not lost due to system

failure. ( E mphasis a dded )

24. Count One of the Administrative Complaint charged

Respondent with violating S ubs ection 474.214(1)(r), Florida

Statutes , by bei ng Ðguilty 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.Ñ In this case, Petitioner failed to establish by

clear and convincing evidence that Respondent breached the

standard of care in the care and treatment of the cat, Maddie.

25. Given the volume of blood needed for the tests to be

administered, Respondent chose an appropri ate site for the blood

draw. Pets, and cats in particular, dislike jugular blood

draws. That Maddie resisted violently was typical. It is

concluded that attempting to draw blood over the course of

20 minutes is not, of itself, a violation of the standa rd of

care. Especially , when considered in the light of the facts

that Maddie was afforded brief breaks, that Respondent changed

syringes a few times, and that MaddieÓs owner , who was present

the whole time , did not intercede to suggest that Respondent wa s

abusing the animal. It was, at worse, an unpleasant and

unsuccessful effort to obtain a valid blood sample, not a breach

of the standard of care.

26. Count Two charged that RespondentÓs records did not

document patient visits, diagnosis, treatment, and other

relevant information required under the chapter in violation of

S ubs ection 474.214(1)(y)3 . , Florida Statutes. The pertinent

rule , as noted above, required Respondent to maintain medical

records that were contemporaneously written and included the

d ate of each service performed. Further, medical records are to

contain the name of the owner, patient identification, record of

any vaccinations administered, complaint or reason for provision

of services, history, physical examination, any present illnes s

or injury noted, and a provisional diagnosis or health status

determination.

27. In accordance with this rule, standard veterinary

practice in Florida dictates that the term Ðphysical

examinationÑ requires a recitation of pertinent physical

informatio n relative to the animalÓs status. The hand - written

summary records maintained by Respondent do not reflect the

required information. In contrast, the medical records of the

second veterinarian , to whom Maddie presented on April 7, 2008,

contain all the mandated information. Dr. Jerry Alan GreeneÓs

opinion (supported in fact by the actual records presented in

this cause) has been deemed persuasive. Petitioner has

established by clear and convincing evidence, and it is

concluded, that Respondent failed t o maintain records in

accordance with the standards set forth in the administrative

rule.

28. Finally, Petitioner alleged Respondent was guilty of

fraud , Ðin the collection of fees from consumers or any person,

agency, or organization paying fees to prac titioners , Ñ in

violation of S ubs ection 474.214(1)(m), Florida Statutes. The

allegation of Count Three represe nted that since Respondent

over charged for the copies of MaddieÓs records (presumably in

violation of the rule), such action constitutes ÐfraudÑ a s set

forth in the statute. The term ÐfraudÑ generally suggests

deceit or trickery perpetrated for a gain or unfair advantage.

In this case, Respondent offered the alleged victim the option

of having the records faxed to her new veterinarian at no charge

or having the copies made and provided at a cost.

29. It cannot be concluded Respondent perpetrated a fraud

regarding the cost imposed on Ms. Weigandt as the records

tendered included pages that did not relate to Maddie. The

miscalculation of the appr opriate fee , when considered along

with RespondentÓs offer of the records at no charge to

Ms. Weigandt , does not constitute ÐfraudÑ as stated in the

statute. At best, it was an over - payment of $5.25. Given the

fact that Respondent had already given Ms. Weigandt the benefit

of not contesting the fee and charges for MaddieÓs blood draw,

this challenged amount is inconsequential and likely

inadvertent, not intentional.

30. Disciplinary guidelines set forth by rule impose d

restrictions and limitations on the BoardÓs discretion to

administer penalties for violation of law. Florida

Administrative Code Rule 61G18 - 30.001 provides that the usual

penalty for a violation of S ubs ection 474.214(1)(y), Florida

Statutes, is a penalty ranging from a reprimand up to o ne - year

suspension followed by one - year probation and an administrative

fine from $2,000.00 to $5,000.00. Further, aggravating and

mitigating circumstances may be considered by the Board in

imposing a penalty for violation of law. The Board may deviate

f rom the usual penalties and consider:

(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) T he 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

licenseeÓs livelihood;

(h) Any effort of rehabilitation by the

licensee;

(i) The actual knowle dge 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

innocenc e, 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.

31. In this case , Respon dent has never been disciplined ,

did not violate the standard of care in treating Maddie, did not

benefit from the infraction committed, did not pose a threat to

the public or to Maddie, and did not violate the statute in the

dispensing of drugs or providing other treatment of Maddie.

RespondentÓs error was in record - keeping only. As it relates to

this case, the penalty guideline is too severe. It is concluded

a reprimand and the imposition of costs of the investigation for

the violation is sufficient and a more appropriate penalty.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Board o f Veterinary Medicine

enter a final order finding that Respondent failed to keep

appropriate records as alleged in Count Two of the

Administrative Complaint, imposing a penalty of reprimand and

the costs of investigation, and dismissing all other counts of

the Administrative Complaint as unfounded.

DONE AND ENTERED this 1 3 th day of October , 2010 , in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 3 th day of October , 2010 .

ENDNOTE

1/ All references t o Florida Statutes and the Florida

Administrative Code in this Recommended Order are to the 2009

version unless otherwise stated. The parties have not

represented any disagreement as to the pertinent law applicable

to this case.

COPIES FURNISHED :

Eliza beth F. Duffy, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399 - 2202

Bryan W. Reynolds, Esquire

Reynolds Stowell Parrino, P. A.

8700 4th Street , North

St. Petersburg, Florida 3370 2

Juanita Chastain, Director

Division of Professions

Board of Veterinary Medicine

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399 - 0792

Reginald Dixon, 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.