13-000100PL Department Of Business And Professional Regulation, Board Of Veterinary Medicine vs. Ted Oroski, D.V.M. Status: Closed Recommended Order on Thursday, May 16, 2013.

Summary: Petitioner proved a violation of section 474.214(1)(ee) with respect to Respondent's records for two horses. No standard of care violation proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND )

PROFESSIONAL REGULATION, BOARD )

OF VETERINARY MEDICINE , )

)

Petitioner , )

)

vs. ) Case No. 13 - 0100PL

)

TED OROSKI, D.V.M. , )

)

Respondent . )

)

RECOMMENDED ORDER

On March 26, 2013, a duly - noticed hearing was conducted by

video teleconferencing with sites in Tallahassee and Gainesville,

Florida. Lisa Shearer Nelson, an administrative law judge

assigned by the Divis ion of Administrative Hearings, presided

over the hearing.

APPEARANCES

For Petitioner: Cristin Erica White, Esquire

Elizabeth Fletcher Henderson, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street, Suit e 42

Tallahassee, Florida 32399 - 2202

For Respondent: Ted Oroski, D.V.M., pro se

Post Office Box 454

Ocala, Florida 34478

S TATEMENT OF THE ISSUE

The issue to be determined is whether Respondent, Ted

Oroski, D.V.M., violated section 4 74.214(1)(r) and (ee), Florida

Statutes (2009), and Florida Administrative Code Rule 61G19 -

18.002(3) , as charged in the Amended Administrative Complaint

with respect to his care and treatment of two horses named

Ð Mattie Ñ and Ð Coosa. Ñ If Respondent is foun d guilty of the

violations charged, it must be determined what penalty should be

recommended to the Board of Veterinary Medicine.

PRELIMINARY STATEMENT

On March 23, 2011, a probable cause panel of the Board of

Veterinary Medicine found probable cause to br ing disciplinary

proceedings against Respondent, Ted Oroski, D.V.M. On April 28,

2011, Respondent filed an Election of Rights form disputing the

allegations in the Administrative Complaint and requested a

hearing pursuant to section 120.57(1), Florida Sta tutes. On

January 8, 2013, the Department of Business and Professional

Regulation (Department) filed an Amended Administrative Complaint

against Respondent, alleging that he violated section

474.214(1)(r) and (ee), and r ule 61G19 - 18.002(3), with respect t o

his care and treatment of two horses named Ð Mattie Ñ and Ð Coosa. Ñ

On January 9, 2013, the matter was referred to the Division of

Administrative Hearings for the assignment of an administrative

law judge.

T he case was scheduled for a hearing to be conduct ed on

March 26, 2013, and the hearing was conducted as scheduled.

Official recognition was taken of the contents of chapters 455

and 474, Florida Statutes (2009) ; Florida Administrative Code

Rule 61G18 - 18. 002 as it existed on March 23, 2011; and

Responden t Ó s disciplinary history as reflected in Petitioner Ó s

proposed Exhibit 10.

Petitioner presented the testimony of Jodi McDermott, Ben

Schachter, D.V.M., and Lisa Sinclair, D.V.M. Petitioner Ó s

Exhibits 3 - 5, 9 , and 12 were admitted into evidence. Respondent

testified on his own behalf, but did not present any other

witnesses or submit any exhibits.

The Transcript of the proceeding was filed with the Division

on April 11, 2013, and Petitioner timely filed a Proposed

Recommended Order on April 22, 2013. At th e time of the filing

of this Recommended Order, Respondent has not filed a post -

hearing submission. All references to the Florida Statutes are

to the 2009 codification unless otherwise indicated.

FINDING S OF FACT

1. The Department of Business and Profess ional Regulation

and the Board of Veterinary Medicine are the state agencies

charged with the licensing and regulation of the practice of

veterinary medicine pursuant to section 20.165 and chapters 455

and 474, Florida Statutes .

2 . Respondent Ó s address of record is Post Office Box 454,

Ocala, Florida 34478.

3. Respondent, Ted Oroski, D.V.M., is and has been at all

times relevant to these proceedings, a licensed veterinarian in

Florida, having been issued license number VM 4239.

4. Respondent has a discip linary history with the Board of

Veterinary Medicine. On April 2, 2010, the Board entered a Final

Order against Respondent after Respondent failed to file a

response to the Administrative Complaint in DBPR Case No. 2009 -

11330, filed August 24, 2009. As a result, the Board Ó s Final

Order adopted the Findings of Fact and Conclusions of Law alleged

in the Administrative Complaint and found Respondent to be guilty

of violating section 474.214(1)(cc), by failing to keep

contemporaneously written medical records ; section 474.214(1)(o),

by committing fraud, deceit, negligence, incompetency, or

misconduct in or related to the practice of veterinary medicine,

and section 474.214(1)(f), by failing to furnish copies of all

reports and records relating to the treatment or examination of a

patient. The Board imposed a fine of $5,500 and costs of

$248.36, to be paid within one year of the Final Order, and non -

reporting probation for a period of two years and six months.

The Board has granted four extensions of time, up to and

including December 12, 2012, for the payment of the fine.

5. Respondent worked as the veterinarian caring for Jody

McDermott Ó s horses for several years. Ms. McDermott owned

several horses, including approximately six mares , and used the

horses for breeding purposes. The allegations in this case

address the care and treatment given, and the adequacy of medical

records kept, for a mare name Coosa and a foal named Mattie. The

foal is also identified in the records as Ð Ritzy Ò 09, Ñ because

she was foa led by the mare Ritzy in 2009. Because most of the

records refer to the foal as Ritzy Ò 09, she will be so identified

for the purposes of this Recommended Order.

Ritzy Ò 09

6. The record does not indicate when Ritzy Ò 09 was born,

although it appears that s he was born in January 2009. The

records provided for Ritzy Ò 09 which purport to be medical

records do not appear to be medical records at all. Instead, the

records are more along the lines of invoices which sometimes

describe the nature of treatment giv en, and sometimes do not.

7. For example, on January 30, 2009, it appears from the

records provided as Petitioner Ó s Exhibit 4 that Respondent

performed an eyelid exam, and diagnosed an entropian left eyelid.

The note for January 30, 2009, states in its e ntirety:

Ritzy 09 Eye lid exam 10 --

Entropian L eyelid 40 --

TAB med.

No ulceration

8. This notation does not contain a medical history or

presenting complaint from the owner, but does show results of the

exam along with a treatment plan.

9 . An entropian is a condition where the eyelid is turned

in and can rub or abrade the cornea, and has to be corrected

surgically.

10. On February 2, 2009, Respondent performed the surgery

to correct the foal Ó s eyelid problem. The notation for this day

s tates:

Ritzy Ò 09 Anesthesia 40 --

Entropian [?]x1

TAB oint. 60 --

- BAR

- Ropen/Ketamine

- 4 sutures lower lid l

- medicate eye

- no ulceration noted

11. According to Dr. Schachter, an expert for the

Department, BAR is a term meaning the foal is otherwise normal.

In his opinion, this particular record was adequate for a medical

record.

12. On April 21, 2009, Respondent examined Ritzy Ò 09. The

notes for this visit state the following:

BAR

TPR - W NL

Mild throat latch

Swelling

No nasal discharge

Advised possible

Allergic rxn/

tympany / possible

strangles

Observe for several days

13. Ms. McDermott testified that Respondent gave her some

antihistamine powder to give the foal; however, no notation

regarding dispensi ng of antihistamine is included in the records

for this horse. The record also did not include any indication

of the foal Ó s age or history, or the nature of the presenting

complaint.

14. Respondent saw the foal again on April 29, 2009, and

noted that Ri tzy Ò 09 had increased throat latch swelling, no

discharge and was nursing normally. The note for April 29,

2009 , states in part, Ð Referred to EMC for scope and workup. Ñ

15. EMCO is the Equine Medical Center of Ocala.

Ms. McDermott denied that Responden t referred Ritzy Ò 09 to EMCO

on April 29, and testified that she took Ritzy Ò 09 and her

mother, Ritzy, to EMCO after she went out to feed the foal and

blood was running out her nose.

16. The medical records for EMCO with respect to Ritzy Ò 09

include an e ntry for April 29, 2009, indicating that the foal

was referred to EMCO for evaluation of a progressive swelling in

the throat latch region with intermittent increased airway

sounds. Samples for lab work were collected that same day. The

more persuasive e vidence indicates that Respondent referred

Ritzy Ò 09 on April 29, 2009, and it is so found.

17. Ritzy Ò 09 was treated successfully at EMCO.

Respondent did not provide further care to the foal after the

April 29, 2009 , referral.

18. As a whole, the doc uments produced with respect to

Respondent Ó s care and treatment of Ritzy Ò 09 do not comply with

the requirements for medical records contained in r ule 61G18 -

18.002. The records do not contain the name of the owner or

agent; do not provide adequate patient identification; provide

no record of vaccinations administered; and often do not provide

an initial complaint or reason for provision of services.

19. However, no credible evidence was provided to indicate

that Respondent Ó s care and treatment was incomp etent or below

that level of care, skill, and treatment recognized by a

reasonably prudent veterinarian as being acceptable under

similar conditions and circumstances.

Coosa

20. One of the mares that Ms. McDermott owned , and for

which she sought care fr om Respondent , was a mare named Coosa.

Ms. McDermott obtained Coosa in or about 2007. The care and

treatment at issue in this cas e was rendered from May 2009

through April 2010.

21. The records related to Coosa Ó s care and treatment are

sparse . As was the case with Ritzy Ò 09, the records are more

like invoices which sometimes describe the nature of treatment

given, and sometimes do not. Moreover, the records include

charges for services provided for more than one animal, and

sometimes exclude the ident ity of the animal receiving services.

22. The records for May 7, 2009, indicate that Coosa

received an Oxytocin injection and an unidentified dosage of

Domperidone. Oxytocin is a hormone given to a mare post - foaling

to get the uterus to contract and h el p the mare to lose her

after - birth. Domperidone i s a drug that is, according

Dr. Schachter, not approved for horses. The records do not

provide a reason for administration of the drug.

23. The records for this date lack a history and reason

for the vis it. No results of the exam are listed and there is

no treatment plan, no signalment for the animal, no dosage for

the drugs given , and no diagnosis.

2 4 . On May 30, 2009, Respondent performed an ovarian

examination on Coosa . While the medical records include

reference to an ovarian examination and examination by vaginal

speculum, no presenting complaint, no history, no diagnosis, and

no treatment plan are included.

2 5 . On June 2, 2009, Respondent artificially inseminated

Coosa and gave her an HCG inj ection. The medical record entry,

in its entirety, lists a farm call, AI, and HCG inj., with

charges associated for each. The purpose of the HCG injection

is to induce ovulation. The record, however, does not show a

presenting complaint, the identity of the owner, a diagnosis, a

treatment plan, or the health status of the a nimal.

2 6 . On June 18, 2009, Respondent performed a pregnancy

palpation, and the notes indicate that the palpation was

positive for pregnancy. No other information other than a Ð far m

call Ñ charge was listed for this visit. There is no signalment

for the animal, no history, no clinical assessment other than

the positive pregnancy test, and no plan for follow - up.

2 7 . The gestational period for a mare is approximately 354

days. A ve terinarian can usually diagnose a pregnancy two and a

half weeks after artificial insemination. The June 18

examination was 16 days after insemination. At this point in a

pregnancy, it is customary to check for a twin pregnancy because

a horse cannot eff iciently support more than one foal per

pregnancy. Because it is difficult to palpate for twin

pregnancy at this point, rectal ultrasound normally would be

used. No ultrasound was performed at this point in the

pregnancy. However, while the evidence dem onstrated that

ultrasound would be normal practice, the Department did not

establish that failure to perform an ultrasound would be below

the appropriate standard of care.

2 8 . On September 9, 2009, Respondent Ó s records show that

an ultrasound was perform ed on Coosa, as well as four other

horses. However, Ms. McDermott did not receive any copies of

the ultrasound films, and none are in the medical records .

Respondent testified that there were no ultrasound films because

his ultrasound machine had an elem ent that was burned out for

two to three months. He gave no explanation as to why the

machine was not repaired in a timely manner.

2 9 . The September 9, 2009, note also stated that Coosa was

given Dectomax, but no dosage was indicated. Dectomax is an

in jectable de - wormer approved and licensed for use with cattle.

Its use by injection has been discontinued by the Food and Drug

Administration and Dr. Schachter testified that it has been

withdrawn from the market for use with horses for several years.

He knew of no studies that show its safety for use with pregnant

horses. However, as with the failure to perform an ultrasound

early in the pregnancy, Dr. Schachter and Dr. Sinclair were not

asked and did not give an opinion indicating that the provision

of Dectomax constituted a violation of the appropriate standard

of care.

30 . The note for September 9, 2009, also indicate s that

100 gr. of Bute powder was provided. Bute refers to

Butazolidin, an anti - inflammatory drug. However, the note does

not indicat e which horse or horses were to receive the drug, or

the symptoms the drug was intended to address.

3 1 . The note for September 9, 2009, also provides no

information with respect to the progress of Coosa Ó s pregnancy;

no reason stated for the provision of services; no history; no

physical examination other than the ultrasound; no present

illness or injury; and no provisional diagnosis or health status

determination other than the positive ultrasound note with no

copy of the films.

3 2 . On October 9, 2009, Respondent performed a soundness

examination to check for lameness and administered 100 cc Ó s of

Banamine.

3 3 . There are two separate invoices/records for October 9,

2009. Both reference a farm call, a soundness exam, 100cc of

Banamine, TAB ointment, and the charges associated with these

services. However, one copy of the record includes a notation

at the bottom for SAV - A Hoof solution, which is circled. On the

second record, the notation for SAV - A Hoof solution is written

over the TAB ointment. Below those notations, the record reads,

White line dx

With soft soles

11/U lame BF

Bute ± Banamine

Next several days

3 4 . Ms. McDermott received only the first version of the

notes for October 9, 2009. The first version does not include a

history or prese nting complaint, physical examination, diagnosis,

or treatment plan. The second version includes information

related to the examination and a treatment plan, but no history or

presenting complaint. Neither note contains information regarding

the status o f Coosa Ó s pregnancy, or her condition with respect to

the pregnancy. At no point in the records for Coosa does it

indicate when she was expected to foal.

3 5 . There are no records for this pregnant mare from

October 9, 2009, to March 11, 2010 , a period o f five months. The

only note related to Coosa on March 11, 2010, simply indicates

that she palpated as pregnant on that date. The note gives no

further information.

3 6 . On March 31, 2010, Coosa received another injection of

Dectomax. The note for that day contains no other information,

such as any complaint or reason for provision of services,

history, physical examination, present injury or illness, or

provisional diagnosis, health status determination or treatment

plan. Nothing related to her pregna ncy is included.

37. On April 26, 2010 , Respondent made a farm call and gave

Coosa a Bute injection and a Ketofen injection. Both drugs

presumably would have been provided to make the horse more

comfortable.

38. There are two copies of the note for Ap ril 26, 2010. No

other information was provided in the first copy of the note for

that day other than the provision of Bute and Ketofen. A second

copy of the note adds a notation at the end that reads, Ð ll/v lame

BF; trimmed 2 - 3 days ago; all horses sore footed. Ñ However,

neither record contains a history, complaint, physical exam, the

status of her pregnancy, a diagnosis, or a treatment plan.

39. On April 27, 2010, Respondent fit Coosa for E/Z boots

and gave her injections for Bute and Ketofen. No ot her

information is provided in the records. Once again, there is no

identification of the owner, no history, no presenting complaint,

no phys ical examination findings, no notes regarding the pregnancy

or the status of the horse, no diagnosis, and no treat ment plan.

40. There are two different notes for April 28, 2010. The

first indicates that Respondent performed a soundness examination

on Coosa, adjusted the EZ boots, and gave her Bute and Ketofen.

The note also states that the Ð mare very sore; recurr ence of

founder. Ñ It does not indicate when founder was initially

diagnosed, and does not refer to her pregnancy.

41. A second note for April 28, 2010 , indicates that

Respondent gave injections of Bute and an antihistamine, and also

ordered an estrone s ulfate test and blood chemistry.

42. A final note for April 29, 2010 , indicates that

injections of Bute and an antihistamine were given to Coosa. At

this point, Ms. McDermott was dissatisfied with the services she

was receiving from Respondent with resp ect to both Coosa and Ritzy

Ò 09, and terminated his services.

4 3 . An estrone sulfate is a lab test to check for fetal

membrane to see if the mare is still pregnant. While the note

reflects that the lab tests were ordered, no lab results are

contained in Respondent Ó s records for Coosa. Respondent admitted

he typically did not pick up lab results, and would simply get

them over the telephone , and most likely did not receive the

results until after he treated Coosa that day . Respondent

testified that he r elayed to Ms. McDermott the results of the

tests, which indicated that Coosa was no longer pregnant, sometime

that evening.

44 . Ms. McDermott sought the services of another

veterinarian for Coosa, but ultimately she died prior to the time

her foal would have been due. There are no records with respect

to her death because at that time, she was no longer under

Respondent Ó s care. The veterinarian who assumed Coosa Ó s care did

not testify.

4 5 . As a whole, the documents produced with respect to

Respondent Ó s care and treatment of Coosa do not comply with the

requirements for medical records contained in Florida

Administrative Code Rule 61G18 - 18.002. The records do not

contain the name of the owner or agent; do not provide adequate

patient identification; pr ovide no record of vaccinations

administered; do not provide adequate documentation of the

course of her pregnancy , and often do not provide an initial

complaint or reason for provision of services.

4 6 . Respondent was convinced that the recurrence of

fou nder for this mare was due to her obesity, and felt she was

metabolically challenged. He was trying to get her to the po int

of foaling because , according to Respondent, usually sore - footed

horses tend to improve after giving birth. He also stated that

he provided no further records related to the pregnancy because

there were no problems: she was gaining weight, no t showing any

signs of losing the foal, had no evidence of a bag and no

vaginal discharge, and appeared to be heavy in foal. None of

these obs ervations, including his conclusions that she was obese

and metabolically challenged, appear anywhere in her records.

4 7 . However, no credible evidence was provided to indicate

that Respondent Ó s care and treatment with respect to Coosa was

incompetent or below that level of care, skill, and treatment

recognized by a reasonably prudent veterinarian as being

acceptable under similar conditions and circumstances. While one

might infer that Respondent Ó s care was sloppy and perhaps

inattentive, no testimony w as presented to establish the standard

of care for the treatment of a pregnant horse or for the treatment

of founder.

CONCLUSIONS OF LAW

48 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with sections 120.569 and 120.57(1), Florida

Statutes (2012) .

49 . This disciplinary action by Petitioner is a penal

proceeding in which Petitioner seeks to suspend or revoke

Respondent Ó s license as a veterinarian. Petitioner bears the

b urden of proof to demonstrate the allegations in the Amended

Administrative Complaint by clear and convincing evidence. Dep Ó t

of Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla.

1996); Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987).

50 . A s 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, 59 0 (Fla. 2005)(quoting Slomowitz

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

51 . Count I of the Amended Administrative Complaint in this

case charges Respondent with violating section 474.214(1) (r), Ð in

one or more of the following ways:

a. Fai led to accurately diagnose Mattie in

March or April, 2010.

b. Failed to accurately diagnose Coosa with

laminitis.

c. Failed to properly treat Coosa Ó s

laminitis.

d. Failed to provide McDermott with Coosa Ó s

blood work results.

e. Failed to provide Mc Dermott with Coosa Ó s

and the foal Ó s medical records.

f. Failed to keep any medical records about

regarding [sic] Mattie.

52 . The Depar tm ent has not established a violation of

section 474.214(1)(r) by clear and convincing evidence. Where,

as here, a p rofessional standard of conduct is alleged to have

been breached, the Department is obligated to present evidence of

both the standard and the breach of that standard. Purvis v.

Dep Ó t of Prof Ó l Reg. , 461 So. 2d 134 (Fla. 1st DCA 1984). With

respect to bo th Coosa and Ritzy Ò 09, the Department presented

evidence of woefully deficient records, which will be discussed

below; it did not present evidence regarding what the prevailing

standards of practice require with respect to the care and

treatment of a preg nant mare; the diagnosis and treatment of

laminitis; or the diagnosis and treatment of guttural tympany.

Without this evidence, a deviation from the unproven standard

cannot be established. Further , the evidence demonstrated that

Respondent did in fact d iagnose both Ritzy Ò 09 Ó s guttural tympany

and Coosa Ó s founder. The standard by which to evaluate his

treatment for the horses simply has not been proven.

53 . Moreover, the Amended Administrative Complaint seeks to

charge a violation of section 474.214(1 )(r) by demonstrating that

Respondent failed to provide McDermott with Coosa and Ritzy Ò 09 Ó s

medical records. Section 474.202(9) defines the practice of

veterinary medicine as:

diagnosing the medical condition of animals

and prescribing, dispensing, or

ad ministering drugs, medicine, appliances,

applications, or treatment of whatever

nature for the prevention, cure, or relief

of a wound, fracture, bodily injury, or

disease thereof; performing any manual

procedure for the diagnosis of or treatment

for pregna ncy or fertility or infertility of

animals; or representing oneself by the use

of titles or words, or undertaking,

offering, or holding oneself out, as

performing any of these functions. The term

includes the determination of the health,

fitness, or soundn ess of an animal.

54 . I n disciplinary proceedings, the statutes and rules for

which a violation is alleged must be strictly construed in favor

of Respondent. Elmariah v. Dep Ó t of Prof Ó l Reg. , 574 So. 2d 164

(Fla. 1st DCA 1990); Taylor v. Dep Ó t of Prof Ó l Reg. , 534 So. 2d

782, 784 (Fla. 1st DCA 1988). In Elmariah , a physician was

charged with and disciplined for fraud in the practice of

medicine for providing fraudulent information on an application

for hospital privileges. The First District reversed t he Final

Order, holding that the Legislature defined the practice of

medicine as Ð the diagnosis, treatment, operation, or prescription

for any human disease, pain, injury, deformity, or other physical

or mental condition. Ñ § 458.305(3), Fla. Stat. Becaus e

submitting an application, however, false, was not Ð diagnosis,

treatment, operation or prescription, Ñ and the statute was

required to be construed in favor of the licensee, no discipline

for fraud in the practice of medicine could be imposed.

55 . The same can be said here. Failing or refusing to

provide test results or medical records would be a violation of

section 474.2165, and thus a violation of section 474.214(1)(f).

However, Respondent was not charged with violating section

474.214(1)(f), and c an only be disciplined for those violations

actually charged in the Administrative Complaint. Trevisani v.

Dep Ó t of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005); Ghani v.

Dep Ó t of Health , 714 So. 2d 1113 (Fla. 1st DCA 1998); and Willner

v. Dep Ó t of Prof. R eg. , 563 So. 2d 805 (Fla. 1st DCA 1990).

Count I of the Amended Administrative Complaint should be

dismissed.

56 . The same cannot be said for Count II. The Amended

Administrative Complaint charges a violation of section

474.214(1) (ee), Florida Statutes , 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 contemporaneo usly

written medical records as required by rule

of the board.

57 . At the time of the conduct alleged in this case,

Florida Administrative Code Rule 61G18 - 18.002 provides in

pertinent part:

61G18 - 18.002 Maintenance of Medical Records.

(1) There must b e 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.

(2) When a veterinarian is providing

services to a client owning or leasin g 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 the

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 well 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

Record of any vaccinations administered

C omplaint 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 the se

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

58 . The Amended Administrative Complaint alleges that

Respondent failed to keep adequate medical records by failing to

keep records of the horses Ó patient history; identifying

information for either horse, such as color, breed, or sex;

results from physical examinations; name of drugs administered to

the horses; the amount of drugs administered; the concentration

of drugs administered; the results of blood work performed on

Coosa; and the r esults of blood work performed on Mattie (or

Ritzy Ò 09).

59 . Count II has been proven by clear and convincing

evidence. It is unclear how many animals of Ms. McDermott Ó s were

under Respondent Ó s care, although there was a minimum of six

mares. It is cle ar that whether Respondent was caring for six

animals or 60, the requirements of rule 61G18 - 18.002 were not

met. Count II has been proven by clear and convincing evidence.

60 . The Board of Veterinary Medicine has adopted

Disciplinary Guidelines that pro vide notice of the range of

penalties most likely to be imposed for violations of chapter 474

and the rules adopted to implement chapter 474. Fla. Admin. Code

R. 61G18 - 30.001. For a violation of section 474.214(1)(ee), the

guideline penalty range in the version of rule 61G18 - 30.001 in

effect at the time of the conduct in this case 1/ is six months of

probation and a reprimand and administrative fine of $1,500, plus

costs.

61 . The Board may also consider aggravating or mitigating

factors in determining the appropriate penalty. Among those

factors are the length of time since the violation; the number of

times the licensee has been disciplined previously; the damage

caused by the violation; the deterrent effect of the penalty and

its effect on the licens ee Ó s livelihood; any effort at

rehabilitation; and attempts to correct or stop the violation.

Fla. Admin. Code R. 61G18 - 30.001(4).

62 . Here, Respondent has been disciplined previously for

the same violation. His records were not only deficient, they

we re abysmal. The records were so bad that it is difficult to

know whether the care and treatment of the animals under his care

wa s adequate , or which animals were treated . Despite his prior

discipline, Respondent clearly made no effort to address the

defi ciencies in his recordkeeping. An increase in penalty is

appropriate in order create an incentive for Respondent to comply

with the requirements of section 474.214(1)(ee) and the rule

61G18 - 18.001.

63 . The Department has identified a specific amount for

costs in its Proposed Recommended Order. However, no evidence

was presented at hearing regarding the appropriate amount of

costs. Therefore, there is no competent, substantial evidence

upon which to base a costs award.

RECOMMENDATION

Based on the foregoi ng Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Board of Veterinary Medicine

enter a Final Order finding Respondent guilty of violating

section 474.214(1)(ee), Florida Statutes (2009); imposing a

reprimand; imposing an administrative fine of $3,000; and

imposing a period of two years of probation.

DONE AND ENTERED this 16th day of May , 2013 , in Tallahassee,

Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administ rative 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 16th day of May , 2013 .

ENDNOTE

1 / The Department cited to the current version of the guidelines

which provides separate penalty ranges for the first and second

offenses. The rule in effect at the time of the conduct at issue

did not provide this differentiation.

COPIES FURNISHED:

C. Erica White, Esquire

Department of Business

and Professional Regulation

Suite 42

1940 North Monroe Street

Tallahassee, Florida 32399

Ted Oroski, D.V.M.

Post Office Box 454

Ocala, Florida 34478

Juanita Chastain, Executive Director

Board of Vet erinary Medicine

Department of Business

and Professional Regulation

Northwood Centre

1940 North Monroe Street

Tallahassee, Florida 32399

J. Layne Smith, General Counsel

Department of Business

and Professional Regulation

Northwood Centre

1940 North Mo nroe Street

Tallahassee, Florida 32399

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 t he agency that

will issue the Final Order in this case.