Case No.: AV 2000 27

FIRST AMENDED ACCUSATION

(Cal. Gov. Code 11507)

(Added text appears in bold emphasis)

ACCUSATION (Cal. Gov. Code 11503)

Bill Lockyer
Attorney General of the State of California

Thomas S. Lazar
State Bar No. 120621
Deputy Attorney General

Linda K. Schneider
State Bar No. 101336
Deputy Attorney General

California Department of Justice
110 West "A" Street, Suite 1100
San Diego, CA  92101

PO Box 85266
San Diego, CA 92186-5266
Tel: (619) 645-3037

Attorneys for Complainant

BEFORE THE
VETERINARY MEDICAL BOARD
DEPARTMENT OF CONSUMER AFFAIRS
STATE OF CALIFORNIA

In the Matter of the Accusation Against:

Robert Lee Rooks, DVM
and
All-Care Animal Referral Center

Respondent.

COMES NOW Susan M. Geranen who, as Executive Officer of the Veterinary Medical Board, hereby alleges as follow:

PARTIES

   1. Complainant Susan M. Geranen is the Executive Officer of the Veterinary Medical Board, Department of Consumer Affairs, State of California (hereinafter the "Board") and makes and files this Accusation solely in her official capacity as such and not otherwise.

   2. On or about July 25, 1978, Veterinarian License No. 6717 was issued by the Board to Robert Lee Rooks, DVM (herinafter "Respondent"). Said license, which was in full force and effect at all times relevant herein, will expire on November 30, 2001, unless renewed.

   3. On or about June 18, 1986, Permit No. 2704 was issued to All-Care Animal Referral Center with respondent as the managing licensee of said facility. Said permit, which was in full force and effect at all times relevant herein, will expire on May 15, 2002, unless renewed.

JURISDICTION

   4. This Accusation is brought before the Board under the authority of the following sections of the California Business and Professions Code (hereinafter "Code"):

      A. Section 4808 provides, in pertinent part:

      "The board may in accordance with the provisions of the Administrative Procedure Act, adopt, amend, or repeal such rules and regulations as are reasonably necessary to carry into effect the provisions of this chapter..."

      B. Section 4825 provides that:

      "It is unlawful for any person to practice veterinary medicine or any branch thereof in this state unless at the time of so doing, such person holds a valid, un-expired, and un-revoked license as provided in this chapter."

      C. Section 4826 provides that:

      "Any person practices veterinary medicine, surgery, and dentistry, and the various branches thereof, when he or she does any one of the following:

      "(a) Represents himself or herself as engaged in the practice of veterinary medicine, veterinary surgery, or veterinary dentistry in any of its braches."

      "(b) Diagnoses or prescribes a drug , medicine, appliance, application, or treatment of whatever nature for the prevention, cure or relief of a wound, fracture, bodily injury, or disease of animals."

      "(c) Administers a drug, medicine, appliance, application, or treatment of whatever nature for the prevention, cure, or relief of a wound, fracture, bodily injury, or disease of animals, except where the drug, medicine, appliance, application, or treatment is administered by a registered veterinary technician or an unregistered assistant at the direction of and under the direct supervision of a licensed veterinarian subject to Article 2.5 (connecting with Section 4832). However, no person, other than a licensed veterinarian, may induce anesthesia unless authorized by regulation of the board."

      "(d) Performs a surgical or dental operation upon an animal."

      "(e) Performs any manual procedure for the diagnosis of pregnancy, sterility, or infertility upon livestock or Equidae."

      "(f) Uses any words, letters or titles in such connection or under such circumstances as to induce belief that the person using them is engaged in the practice of veterinary medicine, veterinary surgery, or veterinary dentistry. This use shall be prima facie evidence of the intention to represent himself or herself as engaged in the practice of veterinary medicine, veterinary surgery, or veterinary dentistry."

      D. Section 4836 provides, in pertinent part, that:

      "(a) The board shall adopt regulations establishing animal health care tasks and an appropriate degree of supervision required for those tasks that may be performed only by a registered veterinary technician or a licensed veterinarian.

      "(b) The board also may adopt regulations establishing animal health care tasks that may be performed by an unregistered assistant as well as by a registered veterinary technician or a licensed veterinarian. The board shall establish an appropriate degree of supervision by a registered veterinary technician or a licensed veterinarian over an unregistered assistant for any tasks established under this subdivision and the degree of supervision for any of those tasks shall be higher than, or equal to, the degree of supervision required when a registered veterinary technician performs the task.

      "..."

      E. Section 4836.5 provides that:

      The board shall take action pursuant to Article 4 (commencing with Section 4875) of this chapter against any veterinarian licensed or authorized to practice in this state who permits any registered veterinary technician or unregistered assistant to perform any animal health care services other than those allowed by this article.:

      F. Section 4839 provides that:

      "For  purposes of this article, a registered veterinary technician means a person who has met the requirements of Section 4841.5, has passed the written and practical examination, and is registered by the board."

      G. Section 4840 provides that, in pertinent part, that:

      "(a) Registered veterinary technicians and unregistered assistants are approved to perform those animal health care services prescribed by law under the supervision of a veterinarian licensed or authorized to practice in this state."

      H. Section 4840.2 provides that:

      "Registered veterinary technicians and unregistered assistants shall not perform the following health care services:

      "(a) Surgery.

      "(b) Diagnosis and prognosis of animal diseases.

      "(c) Prescribing of drugs, medicine and appliances."

      I. Section 4840.7 provides that:

      "(a) A registered veterinary technician who has been examined by the board in the area of radiation and safety and techniques may operate radiographic equipment under the indirect supervision of a licensed veterinarian.

      "(b) An unregistered assistant may operate radiographic equipment under the direct supervision of a registered veterinary technician or a licensed veterinarian."

      J.  Section 4840.9 provides that:

      "Registered veterinary technicians and unregistered assistants may be employed by any veterinarian licensed or authorized to practice in this state or by any governmental agency which employs veterinarians. However, the employer must be fully aware of the provisions of this article as stated by regulations adopted by the board pursuant to Section 4836."

      K. Section 4853 provides that, in pertinent part, that:

      "(a) All premises where veterinary medicine, veterinary dentistry surgery, and the various branches thereof is being practiced shall be registered with the board....

      "..."

      L. Section 4853.6 provides that, in pertinent part, that:

      The board shall withhold, suspend or revoke registration of veterinary premises:

      "...

      "(b) When the licensee manager has, under proceedings conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, the license to practice veterinary medicine, surgery, and dentistry revoked or suspended."

      M.  Section 4855 provides:

      "A veterinarians subject to the provisions of this chapter shall, as required by regulation of the board, keep a written record of all animals receiving veterinary services, and provide a summary of that record to the owner of  animals receiving veterinary services, when requested. The minimum amount of information which shall be included in written records and summaries shall be established by the board. The minimum duration of time for which a licensed premise shall retain the written record or a complete copy of the written record shall be determined by the board."

      N.  Section 4875 provides that:

      "The board may revoke or suspend for a certain time the license of any person to practice veterinary medicine or any branch thereof in this state after notice of hearing for any of the causes provided in this article. In addition to the authority to suspend or revoke a license, the board shall have the authority to assess a fine not in excess of the five thousand dollars ($5,000) against a licensee for any of the causes specified in Section 4883. A fine may be assessed in lieu of or in addition to a suspension or revocation. The proceedings under this article shall be conducted in accordance with Chapter 5 (commencing with Section 11500) of Part 1 of Division 3 of Title 2 of the Government Code, and the board shall have all of the powers granted therein. Notwithstanding the provisions of Section 4903, all fines collected pursuant to this section shall be deposited to the credit of the Veterinary Medical Board Contingent Fund."

      O. Section 4883 provides that, in pertinent part, as follows:

      "The board may deny, revoke, or suspend a license or assess a fine as provided in Section 4875 for any of the following:

      "...

      "(b) For having professional connection with, or lending one's name to, any illegal practitioner or veterinary medicine and the various branches thereof.

      "(c) Violation or attempting to violate, directly or indirectly, any of the provisions of this chapter.

      "...

      "(f) False or misleading advertising.

      "...

      "(i) Fraud, deception, negligence, or incompetence in the practice of veterinary medicine.

      "(j) Aiding or abetting  in any acts that are in violation of any of the provisions of this chapter.

      "...

      "(o) Violation, or the assisting or abetting violation, of any regulations adopted by the board pursuant to this chapter."

      5. This Accusation is also made in reference to the following regulations contained in Title 16 of the California Code of Regulations:

         A. Section 2032.3 provides, in pertinent part:

         "(a) Every veterinarian performing any act requiring a license pursuant to the provisions of Chapter 11, Division 2, of the code, upon any animal or group of animals shall prepare a legible, written or computer generated record concerning the animal or animals which shall contain the following information"

         "...

         "(9) Records for surgical procedures shall include a description of the procedures, the name of the surgeon, the type of sedative/anesthetic agents used, their route of administration, and their strength if available in more than one strength."

         "..."

         B. Section 2032.4 provides, in pertinent part:

         "...

         "(b) A veterinarian shall use appropriate and humane methods of anesthesia, analgesia, and sedation to minimize pain and distress during any procedures and shall comply with the following standards:

            "(1) Within twelve (12) hours of surgery prior to the administration of an anesthetic, the animal patient shall be given a physical examination. The results of the physical examination shall be noted in the animal patient's medical records.

            "...

            "(3) Provide a method of respiratory monitoring that may include observation of the animal's chest movements, observing the rebreathing bag, or respirometer.

            "(4) A method of cardiac monitoring shall be provided and may include the use of a stethoscope or electrocardiographic monitor.

            "..."

         C. Section 2034 provides that:

         "For purposes of the rules and regulations applicable to animal health care tasks for registered veterinary technicians and unregistered assistants contained in the article, the term:

         "(a) 'Veterinarian' means a California licensed veterinarian.

         "(b) 'R.V.T.' means a Board certified registered veterinary technician.

         "(c) 'Unregistered assistant' means any individual who is not a Board certified R.V.T. or a licensed veterinarian.

         "(d) 'Supervisor' means a California licensed veterinarian or if a job task so provides a Board certified R.V.T.

         "(e) 'Direct Supervision' means the supervisor is on the premised in an animal hospital setting or in the same general area in a range setting, the supervisor is quickly and easily available and that the animal has been examined by a veterinarian at such time as good veterinary practice requires consistent with the particular delegated animal health care job task.

         "(f) 'Indirect Supervision' means that the supervisor is not on the premises, but has given either written or oral instructions for treatment of the animal patient, the animal has been examined by a veterinarian at such times as good veterinary medical practice requires, consistent with the particular delegated animal health care task and the animal is not anesthetized as defined in Section 2032.

         "(g) 'Animal Hospital Setting' means all veterinary premises which are supervised by Section 4853 of the Code to be registered with the Board.

         "(h) 'Range Setting' means any setting other than an animal hospital setting."

         D. Section 2035 provides that:

         "(a) The supervising veterinarian shall be responsible for determining the competency of the R.V.T. or unregistered assistant to perform allowable animal health care tasks.

         "(b) The supervising veterinarian of a R.V.T. or unregistered assistant shall make all decisions relating to the diagnosis, treatment, management and future disposition of the animal patient.

         "(c) The supervising veterinarian shall have examined the animal patient prior to the delegation of any animal health care task to either an R.V.T. or unregistered assistant. The examination of the animal shall patient shall be conducted at such time as good veterinary medical practice requires consistent with the particular delegated animal health care task."

         E. Section 2036 provides that:

         "(a) Unless specifically so provided by regulation, a R.V.T. shall not perform the following functions or any other activity which represents the practice of veterinary medicine or requires the knowledge, skill and training of a licensed veterinarian:

         "(1) Surgery;

         "(2) Diagnosis and prognosis of animal diseases;

         "(3) Prescription of drugs, medicines or appliances.

         "(b) A R.V.T. in an animal hospital setting may perform the following procedures under the direct supervision of a licensed veterinarian when done so pursuant to the order, control and full professional responsibility of the licensed veterinarian:

         "(1) Anesthesia induction by inhalation or intravenous injection;

         "(2) Application of casts and splints;

         "(3) Dental extractions;

         "(4) Suturing of existing skin incisions.

         "(c) Subject to the provisions of subsection (a) of this section, R.V.T.'s in an animal hospital setting may perform under the direct or indirect supervision of a licensed veterinarian other other auxiliary animal health care tasks when done pursuant to the order, control and full professional responsibility of the licensed veterinarian. The degree of supervision by a licensed veterinarian over a R.V.T. shall be consistent with the standards of good veterinary medical practice."

         F. Section 2036.5 provides that:

         "(a) Unregistered assistants shall be prohibited from performing any of the functions or activities specified in subsections (a) and (b) of Sections 2036 of these regulations.

         "(b) Subject to the provisions of subsection (a) of this section, unregistered assistants in an animal hospital setting may perform under the direct or indirect supervision of a licensed veterinarian or the direct supervision of a R.V.T. auxiliary animal health care tasks when done pursuant to the order, control and full professional responsibility of a licensed veterinarian. The degree of supervision by a licensed veterinarian over unregistered assistant shall be higher than or equal to the degree of supervision required when a R.V.T. performs the same task and shall be consistent with the standards of good veterinary medical practices."

COST RECOVERY

      6. California Business and Professions Code section 125.3 provides, in pertinent part, that in any order issued in resolution of a disciplinary proceeding, a board may request that the administrative law judge direct a licensee found to have committed a violation or violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation and enforcement of the case, including charges imposed by the Attorney General. Under section 125.3, subdivision (c), a certified copy of the actual costs or a good faith estimate of costs where actual costs are not available, including investigative and enforcement costs, and charges imposed by the Attorney General, up to the date of the hearing, signed by the designated representative of the entity bringing the proceeding shall be prima facie evidence of reasonable costs of investigation and prosecution of the case.

FIRST CAUSE FOR DISCIPLINE
(Aiding and Abetting the Unlicensed Practice of Veterinary Medicine)

      7. Respondent has subjected both his Veterinarian License No. 6717 and Premise Permit No. 2704 to disciplinary action under California Business and Professions Code sections 4836.5, 5875 and 4883, and also may be assessed a fine not in excess of five thousand dollars ($5,000) under sections 4875 and 4883, as defined by section 4883, subdivision (j), of the Code, in that he has aided or abetted in an act or acts that are in violation of section 4825 of the Code as more particularly alleged hereinafter:

         (a) On or about August 1995, M.W. was hired by respondent as a surgical technician at All Care Animal Referral Center ("ACARC"). Prior to being hired by respondent, M.W. was a heavy equipment operator with no veterinary training. At no time has M.W. ever been licensed as a veterinarian or registered veterinary technician in the State of California. M.W. continued to work at ACARC until on or about May 9, 1998. By the last year of his employment at ACARC, M.W. had been promoted by respondent to the position of "Director of Surgery."

         (b) Between on or about August 1995 and on or about May 9, 1998, M.W., as part of his regular duties and responsibilities while working at ACARC, engaged in the unlicensed practice of veterinary medicine. M.W.'s unlicensed practice of veterinary medicine at ACARC included the following:

               (1) Administering anesthesia;

               (2) Placing PEG tubes;

               (3) Performing entire procedures involving debridement of wounds and suturing of wounds;

               (4) Closing a variety of surgical incisions, including abdominal procedures requiring drain tubes;

               (5) Making incisions; and

               (6) Closing wounds with staples.

Respondent was M.W.'s supervisor and had personal knowledge of, and was personally aware of, the scope of M.W.'s duties and responsibilities at ACARC.

         (c) During M.W.'s employment at ACARC, a veterinary magazine video taped a PEG tube installation surgery on a cat which was performed at ACARC. M.W. performed that surgery.

         (d) Through and including 2000, Respondent has continued to allow unregistered assistants employed by ACARC to administer anesthesia.

SECOND CAUSE FOR DISCIPLINE
(Having a Professional Connection with an Illegal Practitioner of Veterinary Medicine)

      8. Respondent has further subjected both his Veterinarian License No. 6717 and Premise Permit No. 2704 to disciplinary action under California Business and Professions Code sections 4836.5, 4875 and 4883, and also may be assessed a fine not in excess of five thousand dollars ($5,000), under sections 4875 and 4883, as defined by sections 4883, subdivision (b), of the Code, in that he has had a professional connection with, or lent his name to, an illegal practitioner of veterinary medicine and the various branches thereof, as more particularly alleged hereinafter: Paragraphs 7(a), 7(b), and 7(c), above, are hereby incorporated by reference and re-alleged as if fully set forth herein.

THIRD CAUSE FOR DISCIPLINE
(Violating or Attempting to Violate, Directly or Indirectly, a Provision or Provisions contained in the Veterinary Practice Act)

      9. Respondent has further subjected both his Veterinarian License No. 6717 and Premise Permit No. 2704 to disciplinary action under California Business and Professions Code section 4836.5, 4875 and 4883, and also may be assessed a fine not in excess of five thousand dollars ($5,000), under sections 4875 and 4883, as defined by section 4883, subdivision (c), of the Code, in that he has violated or attempted to violate, directly or indirectly, section 4825 of the Code as more particularly alleged hereinafter: Paragraphs 7(a), 7(b), and 7(c), above, are hereby incorporated by reference and re-alleged as if fully set forth herein.

FOURTH CAUSE FOR DISCIPLINE
(Violation, or Assisting or Abetting Violation, of a Regulation or Regulations Adopted by the Board)

      10. Respondent has further subjected his Veterinarian License No. 6717 and Premise Permit No. 2704 to disciplinary action under California Business and Professions Code section 4836.5, 4875 and 4883, and also may be assessed a fine not in excess of five thousand dollars ($5,000), under sections 4875 and 4883, as defined by section 4883, subdivision (o), of the Code, in that he has violated, or assisted or abetted violation, of section 2036.5, subdivision (a), of Title 16 of the California Code of Regulations ("CCR") which prohibits unlicensed assistants from performing any of the functions or activities specified in subsections (a) and (b) of Section 2036 of the CCR, as more particularly alleged hereinafter: Paragraphs 7(a), 7(b), and 7(c), above, are hereby incorporated by reference and re-alleged as if fully set forth herein.

FIFTH CAUSE FOR DISCIPLINE
(Fraud or Deception in the Practice of Veterinary Medicine)

      11. Respondent has further subjected both his Veterinarian License No. 6717 and Premise Permit No. 2704 to disciplinary action, and also may be assessed a fine not in excess of five thousand dollars ($5,000), under California Business and Professions Code sections 4875 and 4883, as defined by section 4883, subdivision (i), of the Code, in that he has committed fraud or deception in the practice of veterinary medicine, as more particularly alleged hereinafter:

         (a) Paragraph 7(a), above, is hereby incorporated by reference and re-alleged as if fully set forth herein.

         (b) On two occasions, respondent instructed M.W. to create a new, inaccurate patient medical records, after the fact. Respondent told M.W. that this was necessary "because we're being sued."

         (c) On or about January 11, 1997, Dr. Michael G. brought his dog "Honey Bear," a 10 year old male Akita, to ACARC. On or about January 24, 1997, "Honey Bear" died at ACARC after multiple surgeries for gastric torsion and the complications which followed those operations. M.W. falsified the following four documents which are contained within the medical records for "Honey Bear": (1) The "Surgery-Anesthesia Report" dated January 13, 1997; (2) The "Surgery-Anesthesia Report" dated January 16, 1997; and (3) The "Surgery-Anesthesia Report" dated January 17, 1997; and (4) The "Surgery-Anesthesia Report" dated January 22, 1997. Respondent told M.W. to "Make sure it's completely filled out and make it look right; this guy's a MD." In falsifying these Surgery-Anesthesia Reports, M.W. took the first entry and estimated what appropriate entries would follow.

         (d) On or about November 12, 1998, during the course of the Board's investigation and in response to a request by the Board, respondent sent a copy of the medical records for "Honey Bear" to the Board which included the falsified medical records described in paragraphs 11(c), above.

SIXTH CAUSE FOR DISCIPLINE
(Fraud or Deception in the Practice of Veterinary Medicine)

      12. Respondent has further subjected both his Veterinarian License No. 6717 and Premise Permit No. 2704 to disciplinary action, and also may be assessed a fine not in excess of five thousand dollars ($5,000), under California Business and Professions Code sections 4875 and 4883, as defined by section 4883, subdivision (f), of the Code, in that he is guilty of false or misleading advertising, as more particularly alleged hereinafter:

         (a) On or about the fall of 1994, L.H. a licensed veterinarian in the State of California, began working at ACARC. L.H. continued to work at ACARC until on or about September of 1997.

         (b) During her employment at ACARC, on two or three occasions, respondent misrepresented L.H. to pet owners as an internal medicine specialist and/or "Internist". L.H. is not board-certified in Internal Medicine. L.H. told respondent to stop, but he refused. Respondent told L.H. that it is important for people to feel that they are getting the best care. L.H. decided to tell pet owners that she is not board-certified and then asked if they still wanted her as their pets' doctor.

         (c) C.B. is a licensed veterinarian in the State of California who has worked at ACARC. Both respondent and C.B. have introduced C.B. as a "Neurologist". C.B. is not board-certified in Neurology. L.H. questioned respondent about the misrepresentation of C.B. but respondent said that he would continue to represent C.B. as a "Neurologist".

         (d) In 1995, A.M. was referred to C.B. by a veterinarian in Orange County because his dog, "Henry D. Pugg," was having seizures. A.M.'s veterinarian told him that C.B. was a Board Certified Neurologist. On his first visit to ACARC, A.M. saw photographs of staff veterinarians displayed under different specialty titles. He saw C.B.'s name displayed under "Neurology." When A.M. discussed his dog's problems with C.B., A.M. asked C.B., "Are you a Neurologist?" C.B. replied, "Yes." A.M. believed that C.B. was a Board Certified Neurologist when he allowed him to treat his dog.

         (e) In 1995, A.I. was referred to ACARC by a veterinarian in Orange County because her dog, "Clancy" was having seizures. The veterinarian told her, "ACARC has specialists, such as Neurologists." A.I. made an appointment at ACARC. On her first visit to ACARC, A.I. saw a display board in the reception area which listed the names of the veterinarians under different specialty titles. A.I. believed that ACARC was staffed with specialists in many different specialty areas. A.I.'s dog was seen by an ACARC veterinarian who told A.I., "I would like Clancy to be seen by C.B." A.I. believed she was being referred to C.B. because he was a Neurologist. On the second visit Clancy had with C.B., C.B. told A.I. "Another Neurologist is visiting from out-of-state and I would like to have the other Neurologist see Clancy, too." A.I believed that C.B. was a Neurologist.

         (f) In April, 2001, P.W. and F.W. were referred by ACARC by their local veterinarian in Bakersfield so that their dog "BJ" could be seen by a neurologist and have a cerebral spinal fluid analysis done. On their first visit to ACARC, a staff member gave them a tour of the facility and told them, "All our doctors are specialists. They meet twice a day to discuss different cases." They were shown a wall of photographs of staff members depicted under different specialties and believed that these specialists had done post-graduate work in the specialty areas. P.W. and F.W. were introduced to C.B. who would be the treating veterinarian for BJ. F.W. said to C.B., "I requested a referral to a Neurologist and that is why we're here." C.B. did not respond to her comment, but simply began asking questions about BJ's history. P.W. and F.W. believed C.B. was a Neurologist. After testing recommended by C.B., radiation treatment was prescribed by C.B. When BJ's condition did not improve, they consulted a veterinarian outside of ACARC who informed them that C.B. was not a Neurologist.

         (g) In December, 1998, A.B. and R.B. were told by their local veterinarian in Palm Desert to take their dog, "Jenny" to ACARC because of her diabetic condition. A.B. called ACARC and specifically asked for an appointment with an Internist to see Jenny. A.B. was given an appointment to see ACARC veterinarian, R.H. At ACARC, A.B. and R.B. saw the photographs of staff veterinarians shown under different specialty titles. They believed ACARC had many specialists on staff in many different specialty areas. When A.B. and R.B. met R.H. at ACARC, R.H. told them, "This is your lucky day because I am on duty today and our other Internist is on duty tomorrow." A.B. and R.B. left Jenny at ACARC under R.H.'s care because they believed she would be cared for by Internists both that day and the next day. R.H. is not Board Certified in Internal Medicine and the veterinarian who cared for their dog the following day, B.H. was not Board Certified in Internal Medicine either.

         (h) In 2000 and 2001 ACARC published advertisements in the Pacific Bell Smart Yellow Pages, Verizon Super Pages, Pulse, An Official Publication of the Southern California Veterinary Medical Association, and Veterinarian, the California Veterinary Medical Association monthly journal. The advertisements are deceptive in that they mislead consumers of the State of California to believe that ACARC has specialists in many specialty areas of veterinary medical practice who are highly trained and are leaders in their field who are regularly available who diagnose and treat rare diseases. The advertising is misleading because ACARC did not have specialists in many specialty areas of practice who are highly trained and leaders in their field regularly available. In fact, ACARC had only a few Board Certified Specialists on staff who were regularly available. ACARC promoted other specialists as being available, when, in truth, they did not reside in Southern California and only visit at ACARC on occasion.

SEVENTH CAUSE FOR DISCIPLINE
(False or Misleading Advertising)

      13. Respondent has further subjected both his Veterinarian License No. 6717 and Premise Permit No. 2704 to disciplinary action, and also may be assessed a fine not in excess of five thousand dollars ($5,000), under California Business and Professions Code sections 4875 and 4883, as defined by section 4883, subdivision (f), of the Code, in that he is guilty of false or misleading advertising, as more particularly alleged hereinafter: Paragraphs 12(a), 12(b), and 12(c), above, are hereby incorporated by reference and re-alleged as if fully set forth herein.

EIGHTH CAUSE FOR DISCIPLINE
(Negligence And/Or Deception in the Practice of Veterinary Medicine)

      14. Respondent has further subjected both his Veterinarian License No. 6717 and Premise Permit No. 2704 to disciplinary action under California Business and Professions Code sections 4875 and 4883, and also may be assessed a fine not in excess of five thousand ($5,000), under sections 4875 and 4883, as defined by section 4883, subdivision (i), of the Code, in that he was negligent and was deceitful in connection with his treatment of a patient, Rocky W." The circumstances are as follows:

         (a) During the period of June 3, 2000 through September 16, 2000, I.W. brought her dog "Rocky," a 5 1/2 year old, 120 pound, Mastiff mix to at ACARC to be treated by Respondent because Rocky had a slight limp in his right, rear leg. On June 3, 2000, Respondent diagnosed a partially ruptured anterior cruciate ligament and recommended restriction of activities.

         (b) On June 18, 2000, I.W. brought Rocky back to see Respondent. At that time, Rocky was not limping. Respondent advised I.W. that because of Rocky's large size, he expected that the ligament would rupture completely in time and that if Rocky began limping again, he recommended surgery. Respondent tol I.W. that he guarantees his arthroscopic knee surgeries.

         (c) Between June 18, 2000 and June 30, 2000, Rocky did have episodes of limping on his right rear leg after running and playing. Based upon Respondent's advise, I.W. scheduled surgery for Rocky to be done on July 1, 2000.

         (d) On July 1, 2000, Respondent performed arthroscopic exploration of Rocky's right stifle, which, according to Respondent's report concerning the surgery, revealed an 80% rupture of the anterior cruciate ligament and meniscal damage. Debridement of the damaged ligament and meniscus combined with an extracapsular stabilization technique was employed.

         (e) Post-operatively, Rocky did not re-gain the ability to bear weight or walk around without limping on his right  rear leg for the remainder of time that Rocky continued under Respondent's care. Rocky was followed at ACARC weekly after the surgery.

         (f) On July 31, 2000 Respondent examined Rocky. According to Respondent's records, physical exam of the musculoskeletal and neurologic systems was recorded as follows: "Non-weight bearing on the right rear leg." According to the records of the visit, orthopedic evaluation of the right stifle to assess stability or range of motion was not performed, nor was a neurologic exam done to assess spinal discomfort, reflex abnormalities, use of the other three legs, and other appropriate assessment. Respondent advised I.W. that Rocky should be admitted to the hospital to have an MRI of his back the next day to rule out lumbosacral entrapment and that if Rocky's continued lameness was not due to a back problem, Respondent would perform a second arthroscopic exploratory surgery on Rocky and that I.W. would not be charged for the MRI or the second arthroscopic surgery under his guarantee. I.W. agreed.

         (g) On August 1, 2000, Rocky was anesthetized and an MRI of his spine was performed. Based on the MRI, Respondent determined Rocky's continued lameness was not caused by a back problem and then performed arthroscopic surgery on Rocky's right, rear leg. Revision of the extracapsular stabilization was done using absorbable suture. The medical records for Rocky do not show any comments made regarding stifle stability or range of motion before or after the arthroscopic procedure.

         (h) Rocky's condition did not improve much after the surgery of August 1, 2000. I.W. brought Rocky back to ACARC as directed for follow up visits.

         (i) On August 7, 2000 Respondent examined Rocky and the medical records for the visits state: "Nonweight-bearing on the right rear leg. Swelling on the lateral aspect of the right stifle. Stifle is stable." No other orthopedic or neurologic evaluation is recorded. There is no mention in the medical record of any back problem.

         (j) On August 13, 2000 Respondent examined Rocky and the medical records for the visit state: "Swelling has decreased." No other orthopedic or neurologic evaluation is recorded. There is no mention in the medical record of any back problem.

         (k) On August 18, 2000, Rocky was examined by ACARC veterinarian, F.B. The patient's medical records for that date state: "Stifle swollen. Walking with occasional toe-touching. Non-painful." No other orthopedic or neurologic evaluation is recorded. There is no mention in the medical record of any back problem.

         (l) On August 20, 2000, Rocky was again examined by ACARC veterinarian, F.B. Dr. F.B. noted in the patient's medical record the MS/Neuro system to be "NSF," meaning "no significant finding." There is no notation in the record regarding stifle stability or range of motion. No neurologic abnormalities are identified. There is no mention in the medical record of any back problem.

         (m) On August 27, 2000 Respondent examined Rocky. The patient's medical record states: "Significantly improved. Walking with 60% weight bearing...(balance undecipherable)." Prednisone therapy was initiated, but the record does not indicate the reason for the medication.

         (n) On September 3, 2000, Respondent examined Rocky. The patient's medical record states: "Increased stability in stifle, using leg more, good ROM (range of motion.)" The record shows the Prednisone dosage is increased, but does not show the reason. There is no mention in the medical record of any back problem.

         (o) On September 11, 2000, Respondent examined Rocky. G.W.B., D.V.M., who was not licensed as a veterinarian in California, attended the examination. The patient's medical record states: "Weight bearing lameness on the right rear is improving. Will hold up right rear leg when standing. Muscle atrophy of the right rear. Leg is less painful, but is still achy." There is no comment in the record regarding stifle stability or range of motion. No neurologic abnormalities are identified. There is no mention in the medical record of any back problem.

         (p) On September 13, 2000 Rocky was examined by ACARC veterinarian, P.H. The medical record states: "Can stand on leg to urinate but always had a limp after Sx. Now today 9?13 started to not bear weight on RR (right rear) at all." There is no comment in the record regarding the stifle stability or range of motion. No neurologic abnormalities are identified. There is no mention in the medical record of any back problem. Rocky was admitted to the hospital.

         (q) The patient's medical records include hospital treatment notes for 9/13/00, 9/14/00, 9/15/00 and one identified day, but there is no documentation in these records that Respondent examined or evaluated Rocky at any time during his stay in the hospital and prior to anesthesia for an MRI which was performed on September 15, 2000.

         (r) On September 15, 2000, an MRI of Rocky's spine was performed under anesthesia. The study was reviewed by a Board Certified Veterinary Radiologist. The radiologist found multiple mild disk protrusions in the lumbar and lumbosacral spine. Increased lateralized nerve root entrapment was identified at the lumbosacral spine. There is no comment whether the let side or the right side had more significant findings. No opinion was given by the radiologist of the clinical significance, if any, of the findings.

         (s) On September 15, 2000, Respondent recommended to his client, I.W., that surgical decompression  of the L7-S1 (lumbosacral) space due to nerve entrapment should be done on Rocky. This is documented in the patient's medical record. Respondent told I.W. that Rocky's odds of a successful outcome from the spinal surgery would be 85%.

         (t) The patient's medical records for a two week period prior to Respondent's  September 15, 2000 recommendation that Rocky should have spinal surgery, do not document stifle stability or range of motion. The records do not show that stifle function, or success or failure of the previous two surgical procedures, were critically evaluated. Respondent did not perform a comprehensive neurologic exam on Rocky to clinically evaluate the alleged lumbosacral nerve root entrapment. Respondent did not consult with a Neurologist and did not have Rocky evaluated by a Neurologist before his recommendation for spinal surgery.

         (u) On September 16, 2000, I.W. removed Rocky from ACARC and sought other veterinary opinions.

         (v) On September 22, 2000, Rocky was evaluated by Dr. O, a subsequent treating veterinarian, outside ACARC. Dr. O examined Rocky and found anterior drawer instability in the right stifle consistent with anterior cruciate ligament instability. Mild discomfort was noted in Rocky's lumbosacral spine, but was not judged to be a cause of Rocky's lameness.

         (w) On October 4, 2000, Dr. O performed tibial plateau leveling osteotomy ("TPLO") surgery on Rocky's right, rear leg. Following the October 4, 2000 surgery, Rocky recovered over time and regained his ability to bear weight on his right rear leg, and walk, run and play. Rocky has not exhibited any symptoms which correspond with a medical problem originating from his spine.

         (x) On August 6, 2001 the Division of Investigation requested a complete copy of Rocky W's patient records from ACARC on behalf of the California Veterinary Medical Board. On August 23, 2001, ACARC provided the requested records to the Division along with a cover letter from Respondent.

         (y) Respondent's recommendation to his client, I.W. that she should have subject Rocky to a neurosurgical procedure when there was no objective clinical evidence to support such a recommendation is negligence.

         (z) Respondent's recommendation to his client, I.W. that she should subject Rocky to a neurosurgical procedure in spite of clinical evidence that refuted his recommendation is deceit.

NINTH CAUSE FOR DISCIPLINE
(Violation of Regulation)

      15. Respondent has further subjected both his Veterinarian License No. 6717 and Premise Permit No. 2704 to disciplinary action under California Business and Professions Code sections 4875 and 4883, and also may be assessed a fine not in excess of five thousand ($5,000), under sections 4875 and 4883, as defined by sections 4855 and 4883, subdivision (o), of the Code, in that he has violated provisions of Title 16 of the California Code of Regulations ("CCR"). The circumstances are as follows:

         (a) The facts and circumstances described in the Eighth Cause for Discipline are incorporated by reference and realleged as if fully set forth herein.

         (b) On July 1, 2000, Respondent and Dr. B performed arthroscopic surgery on Rocky under general anesthesia. The handwritten "surgery-anesthesia report" for the surgery of July 1, 2000 documents dosages of preanesthetic medication in terms of cubic centimeters when such dosages should be recorded in milligrams to properly reflect the strength the medication administered. The failure to properly record the strength of preanesthetic medications used constitutes a violation of CCR section 2032.3, subdivision (a)(9).

         (c) The handwritten "surgery-anesthesia report" for the surgery of July 1, 2000 does not record that an anesthetic maintenance agent was used to anesthetize the patient when such an agent must have been used in the anesthesia process. The failure to record the anesthetic maintenance agent used and its route of administration constitutes a violation of CCR section 2032.3, subdivision (a)(9).

         (d) The handwritten "surgery-anesthesia report" for the surgery of July 1, 2000 does not record any form of anesthetic monitoring (respiration and cardiac monitoring). The failure to monitor the patient during surgery constitutes violations of CCR section 2032.4, subdivisions (b)(3) and (b)(4).

         (e) On August 1, 2000, Respondent and Dr. B performed a second arthroscopic surgery on Rocky under general anesthesia. The handwritten "surgery-anesthesia report" for the surgery of August 1, 2000 documents dosages of preanesthetic medication in terms of cubic centimeters when such dosages should be recorded in milligrams to properly reflect the strength of the medication administered. The failure to document the strength of preanesthetic medication constitutes a violation of CCR section 2032.3, subdivision (a)(9).

         (f) The handwritten "surgery-anesthesia report" for the surgery of August 1, 2000 does not record that an anesthetic maintenance agent was used to anesthetize the patient when such an agent must have been used in the anesthesia process. The failure to record the anesthetic maintenance agent used and its route of administration is a violation of CCR 2032.4, subdivision (b)(3).

         (g) On September 15, 2000, general anesthesia was administered to Rocky for an MRI of his spine. The handwritten "surgery-anesthesia report" documents dosages of preanesthetic medication in terms of cubic centimeters when such dosages should be recorded in milligrams to properly reflect the strength of the medication administered. The failure to document the strength of preanesthetic medication constitutes a violation of CCR section 2032.3, subdivision (a)(9).

         (h) There is no documentation in the medical records of the patient that ACARC supplied to the Division of Investigation on August 23, 2001 to show that Respondent examined or evaluated Rocky at any time during his stay in the hospital prior to the administration of anesthesia for the MRI. The failure to examine the patient within 12 hours prior to the administration of anesthesia is a violation of CCR section 2032.4 subdivision (b)(1).

PRAYER

      WHEREFORE, complainant requests that a hearing be held on the matters alleged herein, and that following said hearing, the Board issue its decision: