11-003268PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Richard Langford, D.V.M. Status: Closed Recommended Order on Monday, November 14, 2011.

Summary: The Department did not prove that Respondent failed to include specified items in medical records.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, )

BOARD OF VETERINARY MEDICINE, )

)

Petitioner, )

)

vs. ) Case No. 11 - 3268PL

)

RICHARD L ANGFORD, D.V.M., )

)

Respondent. )

)

RECOMMENDED ORDER

On September 9, 2011 , a duly - noticed hearing was held in

Tallahassee , Florida, before Lisa Shearer Nelson , an

Administ rative Law Judge assigned by the Division of

Administrative Hearings.

APPEARANCES

For P etitioner: C. Erica White, Esquire

Elizabeth Fletcher Henderson, Esquire

Kathleen Brown - Blake, Esquire

Department of Business and

Pro fessional Regulation

1940 North Monroe Street

T allahassee, Florida 323399

For Respondent: Ann Bittinger, Esquire

The Bittinger Law Firm

13500 Sutton Place Drive South

Suite 201

Jacksonville, Florida 32224

STATEMENT OF THE ISSUE

The issue to be determined is whether Respondent violated

section 474.214(1)(ee) , Florida Statutes (2008), and if so, what

penalty should be imposed?

PRELIMINARY STATEMENT

On September 24, 2011, Petitioner, Department of Business

and Profes sional Regulation (Petitioner or the Department), filed

an Amended Administrative Complaint charging Respondent, Richard

Langford, D.V.M. (Respondent or Dr. Langford), with several

record - keeping deficiencies with respect to his care and

treatment of the d og, Awesomer, in violation of section

474.214(1)(ee), Florida Statutes. Respondent disputed the facts

alleged in the Amended Administrative Complaint, and requested a

hearing pursuant to section 120.57(1), Florida Statutes. The

matter was referred to the Division of Administrative Hearings

for assignment of an administrative law judge.

On July 14, 2011, a Notice of Hearing was issued scheduling

the case to be heard September 9, 2011, and the case proceeded as

scheduled. The discovery and motion practice leading up to the

hearing was extensive . The docket of the Division provides the

best recitation of the history of the litigation with respect to

this matter, and need not be rep eated in this Recommended Order,

with one exception. On August 19, 2011, th e Department filed a

Motion to Amend Administrative Complaint, which was granted by

Order dated September 1, 2011, and consistent with that Order the

Second Amended Administrative Complaint was filed on September 8,

2011.

At hearing, the Department prese nted the testimony of

Richard Langford, D.V.M., and the testimony of Melanie Donofro,

D.V.M., by deposition. Petitioner's Exhibits numbered 2 - 5, 7, 11

and 13 were admitted into evidence. Respondent testified on his

own behalf and presented the testimony of Dr. Sergio Vega, D.V.M.

Respondent's Exhibits numbered 1 - 2, 5 - 6, 14 - 17, 19, and 37 were

admitted. Prior to the hearing, the parties filed a Joint

Prehearing Statement that included stipulated facts that, where

relevant, have been included in the findi ngs of fact below.

A two - volume transcript was filed with the Division on

September 27, 2011. Both parties timely filed Proposed

Recommended Orders that have been carefully considered in the

preparation of this Recommended Order. Respondent also filed a

Motion for Attorneys' Fees and Costs pursuant to section 57.105,

Florida Statutes, to which Petitioner has filed a response. The

motion will be addressed by separate Final Order .

FINDINGS OF FACT

1. The Department is the state agency charged with the

li censing and regulation of veterinarians in the State of

Florida, pursuant to section 20.165 and chapters 455 and 474,

Florida Statutes.

2. At all times material to the allegations in the Second

Amended Administrative Complaint, Respondent has been license d as

a veterinarian, having been issued license number VM 5290.

3. Respondent was the treating veterinarian for a dog named

Awesomer, owned by Sheri Lawhun.

4. On April 28, 2009, Ms. Lawhun brought Awesomer to

Respondent for examination and treatment.

5. Just prior to his provision of care for Awesomer,

RespondentÓs office switched to a Ð paperless Ñ system, which

involved switching to electronic medical records, bookkeeping,

etc. Respondent testified that the medical record itself is

stored on the comput er software and that there are a wide variety

of Ð print screen Ñ options available. Respondent demonstrated the

complicated nature of the software and the ability of the

software to Ð hide Ñ different parts of the medical record from the

print screen , as wel l as copy and paste entries to the Ð top Ñ of

the medical record. The software does not allow Respondent to

delete medical record entries, but does allow a user to hide them

or make them unavailable to print .

6. As a result, there are three different sets of medical

records for Awesomer that were admitted into evidence in this

proceeding. Petitioner's Exhibit numbered 2 is the copy of

medical records printed on May 16, 2009, at the request of the

dog's owner, Ms. Lawhun. Petitioner's Exhibit numbered 3 is the

copy of the records printed on July 15, 2009, in response to a

complaint filed with the Department. Petitioner's Exhibit

numbered 4 is a copy of the medical records for Awesomer printed

August 2, 2011, and provided to Respondent's counsel.

7. While much of the documentation is the same, there are

some differences. Respondent attributes these differences to

entries that he ordered Ð declined Ñ or hidden, so that the client

did not see them, or because information was on the Ð splash

screen Ñ in the progr am, which does not print. He also explained

that the information related to Awesomer's final visit on the

evening of April 30, 2009, was moved to the top of the record on

May 16, 2009, so that her owner could see what happened the day

the dog died. He cl aimed that the entry was originally recorded

soon after the dog's death, but it was moved when providing the

records to Ms. Lawhun. Similarly, the date of death for Awesomer

is recorded in Petitioner's Exhibits numbered 2 and 3 as May 1,

2009, the first b usiness day after the dog's final after - hours

visit. It is corrected to April 30, 2009, in the records

identified as Petitioner's Exhibit numbered 4.

8. The following findings of fact deal with the alleged

deficiencies in the Respondent's medical records for Awesomer, in

the order alleged in the Administrative Complaint.

9 . Respondent did not record any recommendations for

diagnostic tests or follow - up examinations to determine the cause

of an elevated heart rate in Awesomer's medical records for

April 2 8, 2009 . He did not do so because in his professional

opinion, AwesomeÓs heart rate was not elevated and was within

normal limits.

10 . Respondent did not record in AwesomerÓs medical records

for April 28, 2009, any examination of feces . He did not do so

because he did not perform any fecal tests .

11 . Respondent's medical records for April 28, 2009,

included laboratory results with test results for serum

creatinine, serum albumin, serum sodium, and urine pH . He did

not find any of these test results to be elevated.

12 . Respondent did not record in the April 28, 2009 ,

medical records any indication that Awesomer was drinking

excessively, beyond a tentative diagnosis of psychogenic

polydipsia . He did not do so because the history the owner gave

his offic e on April 28, 2009, did not mention that the dog was

drinking excessively .

1 3 . Respondent's medical records for April 28, 2009 ,

indicated that he administered Phenylpropanolamine but did not

state the basis for doing so. Respondent testified that

Phenyl propanolamine has one use in veterinary medicine: to help

with urine retention in female dogs only, making further

explanation unnecessary. His testimony on this issue , which was

consistent with Dr. Vega's, is credited.

1 4 . Ms. Lawhun brought Awesomer b ack to Respondent's office

on April 29, 2009, for Respondent to conduct a modified water

deprivation test. The medical records for Awesomer do not

include the dog's weight at the beginning or the end of the test.

However, Respondent testified that, for a modified water

deprivation test as opposed to a traditional water deprivation

test, the weight of the animal at the beginning and end are not

required, because the test simply measures the weight of the

urine over time. Although the medical records somet imes refer to

the test as a water deprivation test, in at least one entry in

both Petitioner's Exhibits 3 and 4, the test is referred to as a

modified water deprivation test. No persuasive evidence was

presented by the Department that contradicts Responde nt's

distinction between a traditional modified water deprivation test

and a modified water deprivation test.

1 5 . The Second Amended Administrative Complaint alleges at

paragraphs 23 - 24 that Respondent's written response from July 7,

2009, states that he provided Awesomer with some water at 2:30,

and that the April 29, 2009, medical records fail to reflect that

he received water during the water deprivation test. However,

the Department did not introduce Respondent's written response

dated July 7, 2009, i nto evidence.

1 6 . There are also allegations in the Second Amended

Administrative Complaint that reference the July 7, 2009 ,

response regarding a visit to the clinic on April 29, 2009, in

the evening. Respondent's medical records for Awesomer have no

ent ries for the evening of April 29, 2009, but the Department

presented no evidence that such a visit occurred.

1 7 . On April 30, 2009, Respondent recorded Awesomer's heart

rate as being 160. He did not record any recommendations for

diagnostic tests or fol low - up examinations to determine the cause

of the elevated heart rate in AwesomerÓs medical records for

April 30, 2009 , because in his professional opinion, AwesomerÓs

heart rate was within normal limits and was not tachycardic . The

Department presented n o evidence to support the premise that a

heart rate of 160 is abnormal and needs further study.

1 8 . Respondent did not record the total amount of fluid

administered in AwesomerÓs me dical records on April 30, 2009, but

he did record the rates upon which t he computerized fluid

administration pump were set. Both of these rates were

documented in the medical record.

1 9 . Respondent performed a complete blood count (CBC) and

general health profile with electrolytes on Awesomer on April 30,

2009. The lab resu lts are included in the medical records, and

indicated that the white blood count was high. While the Second

Amended Administrative Complaint indicates that no explanation or

discussion of the lab results was included in the medical

records, there was no persuasive evidence that, as a record -

keeping matter as opposed to a standard of care issue (with which

Respondent was not charged), additional information was required.

2 0 . Respondent discharged Awesomer on April 30, 2009.

However, he received an emerge ncy call that evening about the

dog, and returned to the clinic to see her. When Ms. Lawhun

arrived with Awesomer, the dog was already dead.

21. Respondent did not fail to record an entry regarding

AwesomerÓs emergency evening examination in AwesomerÓs A pril 30,

2009, medical records until May 16, 2009. Respondent entered the

original post on April 30, 2009. On May 15, 2009, AwesomerÓs

owner, Ms. Lawhun, requested to know what happened to Awesomer.

On May 16, 2009, the Respondent directed a receptionis t to print

AwesomerÓs medical records, excluding non - medical notes, for

Ms. LawhunÓs boyfriend. The notes from April 30, 2009, were

copied out of a post containing medical and non - medical notes to

the top of the record on May 16, 2009, in order to exclude the

non - medical notes. Given that the medical records record

Awesomer's death as occurring either April 30 or May 1,

Respondent's testimony is credited.

22. The Board of Veterinary Medicine's rule regarding

recordkeeping requirements does not define Ð contemporaneous. Ñ

Moreover, Dr. Melanie Donofro, D.V.M., the Department's expert

and a former board member, could not identify a standard length

of time recognized in veterinary practice in which medical

records could be considered contemporaneous.

23. The Second Amended Administrative Complaint refers to a

response dated March 16, 2011, prepared by Respondent to present

to the probable cause panel of the Board of Veter inary Medicine,

and several e nt r i es in the response that are labeled as

Ð clarificatio ns Ñ but that are different from the entries in the

medical records for Awesomer. However, this March 16, 2011

response was not submitted into evidence by the Department.

24. Dr. Sergio Vega, former board member and expert witness

for Respondent, testifie d that t he purpose for accurate medical

records is to allow other treating veterinarians or anyone else

reading the records to be able to understand what a veterinarian

did or did not do. Whether the appropriate treatment was given

is not a medical record s issue, but a standard of care issue.

His testimony is credited.

CONCLUSIONS OF LAW

25 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with s ections 120.569 and 120.57(1), F lorida

Statutes.

26 . This disciplinary action by Petitioner is a penal

proceeding in which Petitioner seeks to suspend or revoke

Respondent's license as a veterinarian . Petitioner bears the

burden of proof to demonstrate the allegations in the Second

Amended Administrative Complaint by clear and convincing

evidence. Dep't of Banking & Fin. v. Osborne Stern & Co. , 670

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

(Fla. 1987).

27 . As stated by the Florida Supreme Court:

Clear and convincing evidence requires that

the evidence must be found to be credible;

the facts to which the witnesses testify must

be distinctly remembered; the testimony must

be precise and lacking in confusion as to the

facts in issue. The evidence must be of such

a weight that it produces in the mind of the

trier of fact a firm belief or conviction,

without hesitancy, as to the truth of the

allegations sought to be established.

In re Henson , 913 So. 2d 579, 590 (Fla. 2005) ( quoting Slomowitz

v. Walker , 429 So . 2d 797, 800 (Fla. 4th DCA 1983) ) .

28 . The Second Amended Administrative Complaint in this

case charges Respondent with violating section 474.214(1)(ee),

Florida Statutes (2008 - 2009), which provides in pertinent part:

474.214 Disciplinary proceedings. - -

(1) The following acts shall constitute

grounds for which the disciplinary actions in

subsection (2) may be taken:

* * *

(ee) Failing to keep contemporaneously

written medical records as required by rule

of the board.

29. Florida Administrative Code Rule 61G18 - 18.002 provides

in pertinent part:

61G18 - 18.002 Maintenance of Medical Records.

(1) There must be an individual medical

record maintained on every patient examined

or administered to by the veterinarian,

except as pr ovided 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 st atus and warrant any treatment

recommended or administered.

* * *

(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 addit ion, 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

Drugs prescribed, administered, or

dispensed

Tissue examination report

Necropsy findings

(6) A veterinarian shall, upon a written

request, furnish, in a timely manner without

delays for legal reviews, a true and corre ct

copy 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.

* * *

(8) It is understood 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;

how ever, the licensee shall be responsible

for providing an adequate backup system to

assure data is not lost due to system

failure.

30. After careful review of the three sets of medical

records in this case, the Department did not establish by clear

and c onvincing evidence that Dr. Langford's medical records for

Awesomer did not include the specific items listed in the Second

Amended Administrative Complaint.

31. Much of the confusion surrounding these records stems

from the fact that there were diffe rent printed versions that

varied, depending on the print commands involved. While

Dr. Langford contends that the actual medical record is in his

computer, his view is rejected. Rule 61G18 - 18.002(5) and (6)

specifically requires that a complete copy of a ll patient records

should be available, upon request by a client or upon subpoena.

The documents retrieved should be the same, regardless of when

printed, and, consistent with rule 61G18 - 18.002(1), should

include Ð all clinical information pertaining to th e patient with

sufficient information to justify the diagnosis or determination

of health status and warrant any treatment recommended or

administered. Ñ

32. The three printed versions, standing individually, did

not necessarily meet this standard. How ever, in terms of the

specific deficiencies alleged, Dr. Langford's medical records

contained the specific items required by rule. He can only be

disciplined for deficiencies specifically alleged in the Second

Amended Administrative Complaint. Trevisani v. Dep't of Health ,

908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v. Dep't of Health ,

714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner v. Dep't of

Prof. Reg. , 563 So. 2d 805 (Fla. 1st DCA 1990).

33. Petitioner asserts that the intent of chapter 474 is

Ð to r equire Florida licensed veterinarians to keep records that

are accurate, clear and made near the time of the treat ment of

the animal in question. Ñ The undersigned agrees. However, the

actual statutory language used requires a veterinarian to Ð keep

contem poraneously written medical records as required by rule of

the board. Ñ § 474.214(1)(ee).

W hen the language of the statute is clear and

unambiguous and conveys a clear and definite

meaning . . . the statute must be given its

plain and obvious meaning. Fu rther, we are

without power to construe an unambiguous

statute in a way which would extend, modify,

or limit, its express terms or its reasonable

and obvious implications. To do so would be

an abrogation of legislative power.

Mendenhall v. State , 48 So. 3d 740 , 748 (Fla. 2010) ( quoting

Velez v. Miami - Dade Cnty. Police Dep't , 934 S o. 2d 1162, 1164 - 65

(Fla. 2006) (quotation marks and citations omitted) ). Under the

plain language of section 474.214(1)(ee), the type of medical

records necessary need to be defined by Board rule. The Board

rule here does not define Ð contemporaneous Ñ a nd the Department's

expert could not identify an industry standard for the term as

applied to medical records.

34. In Breesmen v. Department of Professional Regulation ,

567 So. 2d 469 , 471 - 472 (Fla. 1st DCA 1990), a physician was

disciplined for failin g to record a patient's refusal of

treatment in her medical records. In reversing the Board's

order, the First District stated:

There was no showing on this record that

Dr. Breesmen did not record all medical

treatment administered to his patient, or

that the entries he made were false or

inaccurate. The entire case against hi m

rests on failing to note why h e did not

follow other courses of treatment. Thus, it

cannot be said that Dr. Breesmen violated the

statutory standard established by the

language se t forth in section 458.331(1)(m).

. . .

We also note that at no time during these

proceedings has the Board made reference to

any statute or rule that fixes the standard

of conduct to be followed by a physician

whose patient refuses treatment and reques ts

that his or her refusal not be documented in

the hospital records. Nor has the Board set

forth any statute or rule that requires a

physician to document in the patient's

medical chart the physician's reason for not

performing particular tests or proced ures.

Basic due process requires that a

professional or business license not be

suspended or revoked without adequate notice

to the licensee of the standard of conduct to

which he or she must adhere. The opinions of

the expert witnesses offered by the pa rties

cannot make certain, after the fact, those

standards of conduct that are not clearly set

forth in the statute or rule.

35. With respect to this case, rule 61G18 - 18.002 provides a

laundry list of those items that must be included in an animal's

med ical records, and those items that must be included if the

services are provided. Those items identified in the Second

Amended Administrative Complaint are found in Respondent's

medical records for Awesomer. The closer question is whether, if

the entries for treatment given April 30, 2009, were actually

posted May 16, 2009, they could be considered contemporaneous.

While the time period involved would stretch the envelope, there

is no evidence of an accepted standard by which to measure the

time period a nd the rule does not provide a standard. Under

these circumstances, it cannot be concluded that Respondent has

violated section 474.214(1)(ee) by failing to record medical

records contemporaneously.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED that a Final Order be entered dismissing the

Second Amended Administrative Complaint.

DONE AND ENTERED this 14th day of November , 20 11 , in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 14th day of November , 20 11 .

COPIES FURNISHED:

Ann M. Bittinger, Esquire

The Bittinger Law Firm

13500 Sutton Park Drive South, Suite 201

Jacksonville, Florida 32224

C. Erica White, Esquire

R. Kathleen Brown - Blake, Esquire

Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Juanita Chastain, Executive Director

Board of Veterinary Medicine

Department of Business

and Professional Re gulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

Layne Smith, G e neral Counsel

Department of Business

and Professional Regulation

1940 North Monroe Street, Suite 42

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SU BMIT 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.