TERRITORY OF GUAM

GUAM BOARD OF ALLIED HEALTH EXAMINERS

IN THE MATTER OF ) DISCIPLINARY CASE NO. 08-0001
)
)
JOEL JOSEPH, DVM
fka JOEL SCHIFF
(No. V00045
)
)
) FINDINGS OF FACT,
Respondent.    ) CONCLUSIONS OF LAW
) AND ORDER
__________________________________ )

This matter came before the Guam Board of Allied Health Examiners (GBAHE) pursuant to Title 10 Guam Code Annotated Sections 12810 and 12811 et. seq. on February 3, 4 and 5, and April 20 and 21, 2009. Deliberations began on April 22 and concluded on April 29, 2009. At the request of the Respondent, and to ensure a fair hearing, two board members recused themselves from participating in these disciplinary hearings. They included Chair Sibyl Crisostomo, (Speech Pathology); and Dr Velma Harper, DVM (Veterinary Medicine). Another member, Mr Gregorio Cruz, (Respiratory Therapy) was unable to attend all hearings and withdrew from participation. Those remaining members present for all the hearings where evidence was taken, and all deliberations, consisted of Acting Chair Dr Mamie C. Balajadia, Ed.D. (Psychology); Dr Noel Silan, DPM (Podiatry); Mr Vince Peredo, (Individual Marriage and Family Therapy); Mr Dennis Triolo, (Audiology); Mr William Stanley (Physician Assistant); Ms Julienne Duenas (Physical Therapy); and Dr Richard Chong, Ph.D. (Acupuncture). Representing the Board was Assistant Attorney General David Highsmith. Representing the Respondent Dr Joel Joseph was Attorney Mitchell Thompson, of Maher and Thompson, PC. Dr Joseph was present at every session of the Board including the public deliberations. Prior to the hearing of evidence, Counts II, III, IV and V of the amended specifications of charges were dismissed.

FINDINGS OF FACT

  1. Dr Joel Joseph, DVM ("Dr Joseph") formerly known as Dr Joel Schiff, DVM is a veterinarian licensed to practice veterinary medicine in the territory of Guam. Dr Joseph has never been disciplined in any of the jurisdictions in which he is so licensed.
     
  2. Count I.

    Ear Cropping

    Prior to the enactment of P.L. 29-96 in 2008, Guam law provided that:

    No person shall crop a dog's ears, except when a licensed veterinarian issues a signed certificate that the operation is necessary for the dog's health and comfort, and in no event shall any person except a licensed veterinarian performs such operation.

  3. See 10 GCA Section 34205(d). This law was originally adopted in 1980 as part of P.L. 15-97 and was formerly codified as Guam Government Code section 9640.54(d).
     
  4. It was undisputed that most, if not all, veterinarians on Guam had performed ear cropping during the years prior to the passage of P.L. 29-96 in 2008. It was also undisputed that the procedure was not harmful to the dog's health.
     
  5. ln the case of the dog owned by Ms Zenaida Quenga, Dr Joseph certified that the ear cropping was necessary for the health and comfort of the dog. Respondent's exhibit 45. The dog's owner also acknowledged that she had been advised of issues related to the procedure, and agreed that it was necessary.
     
  6. Dr Joseph testified that, prior to the passage of P.L. 29-96, he refused to do ear cropping unless necessary for the health and comfort of the dog, and that it was his standard practice to use the type of certification form submitted as respondent's exhibit 45. Dr Joseph provided dog owners with an informational handout regarding ear cropping prior to agreeing to perform such procedure. Respondent's exhibit 40.
     
  7. Prior to the adoption of P.L.29-96, Dr Tom Poole contacted other veterinarians to remind them of the limitations on ear cropping under the then-current law. Dr Poole did not contact Dr Joseph with exactly the same warning, although there was testimony that the was a similar warning from Dr Poole.
     
  8. Count VI

  9. There was an accusation that Ms Melissa Sutacio and others obtained rabies vaccine, needles and syringes from Dr Joseph's clinic.
     
  10. The only evidence to support this charge offered by the prosecutor was the testimony of Ms Melissa Sutacio. There is reason to discount the testimony of Ms Sutacio, as she is a friend of Dr Velma Harper's daughter, given the longstanding ill-will between Dr Harper and Dr Joseph. Ms Sutacio also lacked any documentary evidence to support her claim that she had purchased Rabies vaccine from Dr Joseph's clinic. There was no evidence submitted to establish that rabies vaccine is a controlled substance as defined under either Guam or Federal law.
     
  11. Dr Joseph testified that rabies vaccine is often sold directly to customers in the US Mainland and that rabies vaccine may even be purchased freely on-line.
     
  12. Dr Joseph further testified, as corroborated by Ms Michelle Santos, one of his staff members, that his clinic did not sell any rabies vaccine to Ms Sutacio.
     
  13. Count VII

  14. In June 2007, there was a repeated exchange of letters and telephone calls, sometimes heated, between Dr Harper and Dr Joseph regarding Dr Harper's failure to release medical records for certain pets to Dr Joseph. Respondent's exhibits 13, 14, 23, and 37. Dr Joseph was frustrated by Dr Harper's repeated failure to release records, even though the pet owners had executed written releases authorizing the release of their records to Dr Joseph's clinic. He threatened Dr Harper that "I am going to take you down." Testimony of Dr Harper.
     
  15. In late June, 2007, Dr Joseph met Dr Harper (or a woman he mistakenly believed was Dr Harper) twice during evening hours but she failed to return his greeting. Dr Joseph stated that he was not stalking Dr Harper. Dr Joseph's testimony in this regard was corroborated by Chef Kevin Dietrich and Mr Ken Massey. (Furthermore, Dr Harper denied being at either location, during her testimony).
     
  16. In 2008, there was a repeated exchange of letters and telephone calls, sometimes heated, between Dr Lisa Silk and Dr Joseph regarding Dr Silk's refusal to release medical records for certain pets to Dr Joseph. Respondent's exhibit 21, 22 and 29. Dr Joseph was frustrated by Dr Silk's repeated failure to release records, even though the pet owners had executed written releases authorizing the release of their records to Dr Joseph.
     
  17. Dr Joseph was not the only person frustrated by Dr Silk's failure to release records. Mr Lawrence Harvey, a pet owner, testified as to his difficulty obtaining records regarding his dog from Dr Silk. Ms Daphne Mantanona, a former employee of Dr Joseph, testified as to the hostile reception she received when she attempted to pick up some records from Dr Silk.
     
  18. On or about December 24, 2007, Dr Joseph appeared at Dr Silk's clinic, and searched the premises looking for Dr Silk. He was familiar with the site as he had worked there a few years previously when the clinic had been operated by Dr Rebecca Diaz. Dr Joseph testified that he did not raise his voice or curse while he was there, and there was no conflicting eyewitness testimony. However, he did not seek permission to search the premises, and he admitted that he himself does not allow former employees into private areas of his own Wise Owl clinic. Testimony of Dr Joseph. Dr Silk testified that her staff informed Dr Silk that Dr Joseph had gone to the non-public portion of her offices in a failed attempt to find her, and had cursed and intimidated the staff on that occasion and on the telephone on previous occasions when he demanded to obtain records of animals.
     
  19. There was no credible evidence that Dr Joseph spread a "false rumor" as to Dr Silk through any comment to Ms Melissa Sutacio.
     
  20. On or about October 17,2008, Dr Joseph and Dr Silk exchanged words outside a meeting of this Board. The two parties had a different recollection as to the tone and content of the conversation. However, Dr Silk testified that she felt intimated by Dr Joseph's size and comments to her. Testimony of Dr Silk.
     
  21. Count VIII

  22. In 2007, Matthew Posner demanded that Dr Joseph release records relating to a certain dog to Dr Silk. Mr Posner accompanied his demands for the records with e-mails containing threats and ethnic slurs against Dr Joseph. Respondent's exhibit 42. Mr Posner even sent a derogatory unsigned letter to Dr Myles Moritz, whom Dr Joseph was in the process of hiring as an associate, in an effort to harass Dr Joseph. Respondent's exhibit 48.
     
  23. Dr Joseph repeatedly, in writing, advised both Mr Posner and Dr Silk that, as it appeared that Ms Frances Hudgens, not Mr Posner, was the owner of the dog. Dr Joseph needed the written consent of Ms Hudgens before he could release the records to Mr Posner. Respondent's exhibit 33.
     
  24. On or about December 14, 2007, AAG William Bischoff, then Board legal counsel, sent Dr Joseph's counsel a letter containing a proposed authorization form for execution by Ms Hudgens. Respondent's exhibit 20.
     
  25. This form was agreeable to Dr Joseph; however, Ms Hudgens refused to sign such a release form, and Dr Joseph never received such a signed release form from her authorizing the release of her pet's records to Mr Posner.
     
  26. In September 2008, Dr Joseph treated a puppy, owned by Mr Casey Waller, upon which Dr Silk claimed to have performed a spay, but found that the spay had not been properly performed. Dr Joseph submitted a video-recording of his treatment of this puppy. Respondent's exhibit 57.
     
  27. Dr Joseph also submitted lab reports which supported his opinion as to the lack of a proper spay upon the puppy in question. Respondent's exhibit 29.
     
  28. Count IX

  29. On April 27, 2008, Stanley Hall brought his dog, "Cejas", to Dr Joseph's clinic for treatment to an injured leg. At the time, Dr Joseph's x-ray machine was inoperative, and the dog's leg was quite swollen.
     
  30. Dr Joseph diagnosed possible hard tissue injury, and repaired the laceration as best he could under the circumstances.
     
  31. Dr Joseph referred the pet's owner to Dr Joseph Edhlund, as his clinic had the best x-ray machine for a dog as large as Cejas. Dr Joseph saw Cejas a number of days later, and the dog still could not put weight on the leg. The dog's owner later took Cejas to Dr Edhlund's clinic about three weeks after Dr Joseph first treated the dog.
     
  32. Dr Joseph caused a subpoena to be served on Dr Edhlund, requiring the production of his records for Cejas, including but not limited to the x-rays of the dog. X-rays were presented to and discussed by the Board. The x-rays showed a serious fracture of the bone. It appears to the Board that Dr Joseph demonstrated a lack of competence by misdiagnosing the broken bone more than one occasion he had to examine the leg. Dr Edhlund remarked to the Board that when he had previously observed Dr Joseph operating, that he saw a roughness and lack of skill in Dr Joseph's surgery. Testimony of Dr Edhlund.
     
  33. Count X

  34. On June 21, 2008, Dr Joseph administered a vaccination (Vanguard Plus5) to a puppy named "Lexie" owned by Mr Jesse Duenas. The vaccination was the first in what was intended to be a series of four vaccinations for canine distemper, parvovirus, and other diseases. Dr Joseph, as part of his standard operating procedure, placed the label from the vaccine onto the record for this puppy. See respondent's exhibit 44.
     
  35. On or about July 5, 2008, the puppy became ill with parvovirus, and was treated by Dr Edhlund's clinic, to which Dr Joseph's staff had referred the puppy's owner, as Dr Joseph's clinic was extremely busy, and therefore unlikely to be able to timely treat the dog that day.
     
  36. Dr Kevin Malakooti testified that the incubation period for parvovirus is in the range of seven to fourteen days, which suggests that the puppy may have been infected with parvovirus even before it receive the first (and only) vaccination from Dr Joseph.
     
  37. Dr Edhlund later sent a blood sample from the puppy to a laboratory for evaluation as to immunity to canine distemper. The laboratory report for the sample indicated an immune response to distemper less than 1.2.
     
  38. Dr W Jean Dodds, an eminent authority in the field of animal immunology, submitted written statement to the Board stating that there were two possible reasons why the titer for the puppy may have showed no immune response. First, due to the puppy being less than 16 weeks of age, there may have been interference by maternal antibodies. A true measure of the puppy's immunity to distemper would be reflected by performing the test after she had reached 16 weeks of age. Second, the puppy may have been a vaccine non-responder. This is a genetic condition whereby the animal fails to mount detectable circulatory immunity but is protected by cell-mediated and secretary immunity. Roughly 10 percent of dogs are such non-responders.
     
  39. Dr Han Van Campen, of Colorado State University, which performed the laboratory report in question, confirmed that roughly six percent of dogs are non-responders in any given month. Dr Van Campen did not indicate if the antibody tested for IgG or IgM. If the test was for IgG, long term immunity, it is not surprising that there was a nonresponse, as it usually takes three to four weeks following vaccination for an immune response for this antibody, and the blood sample was drawn only two weeks following the vaccination.
     
  40. Count XII

  41. In June 2008, Dr Joseph treated the left rear knee of a Chihuahua owned by Ms Amanda Fox, for a condition described as an ecotopic luxating patella.
     
  42. Dr Joseph and his staff member, Ms Michelle Santos, both testified that the dog's owner had repeatedly stated that it was the dog's left rear knee which was in need of treatment.
     
  43. Following the surgery on the dog's left rear knee, the owner complained that the surgery should have been performed on the right rear knee.
     
  44. Dr Kevin Malakooti testified that he provided treatment to the dog after that of Dr Joseph, and that there was nothing wrong with the treatment provided by Dr Joseph.
     
  45. Dr Malakooti further testified that, it is not uncommon for both knees of small breed dogs such as the Chihuahua in question to need such treatment.
     
  46. On June 5, 2008, Dr Joseph examined a pregnant dog named "Lizzie" owned by the Rapolla family. The owners stated that the dog had been bred in the middle of March 2008, and that the dog seemed lazy and had vomited twice.
     
  47. Dr Joseph claimed he recommended an x-ray examination, but that the owners declined.
     
  48. Mrs Rapolla testified that the dog had seemed normal earlier that day, and she further testified that the dog seemed normal the following morning.
     
  49. Dr Joseph also recommended a de-wormer, namely interceptor, to prevent the transfer of worms from the mother to her newborn pups. Dr Joseph did not perform a complete blood count or an ultrasound, but neither of these tests would have determined whether the dog was experiencing fetal dystocia. On the following day, Lizzie died. None of the 10 puppies survived. Testimony of Dr Joseph and Mr Rapolla.

CONCLUSIONS OF LAW

  1. As to Count I, the Board has determined that it would be inappropriate to find that Dr Joseph violated 10 GCA Section 12811 by performing ear cropping prior to the enactment of P.L.29-96, in that it was common practice for other veterinarians on Guam to perform such procedure prior to the recent amendment of 10 GCA section 33402(d), which deleted the requirement that the veterinarian certify that the ear cropping was necessary for the health and comfort of the dog.
     
  2. As to Count VI, the Board has determined that it has not been proven that Dr Joseph violated 10 GCA Sections 12811 (g), in that there is no credible evidence that he distributed rabies vaccine to customers, and further that there was insufficient evidence to find that rabies vaccine is a controlled substance under either Guam or federal law.
     
  3. As to Count VII, the Board has determined that Dr Joseph violated 10 GCA Section 12810(y). There was sufficient evidence presented that he demonstrated intimidating behavior toward two female veterinarians and their staff that was unprofessional.
     
  4. As to Count VIII, the Board has determined that it has not been proven that Dr Joseph violated 10 GCA Sections 12811(n), in that he had a well-founded belief that Mr Posner was not the owner of the dog in question.
     
  5. After examination of all of the testimony and evidence submitted, the GBAHE has made a factual finding that Dr Joseph has been deficient in the practice of veterinary medicine and that his actions toward female veterinarians demonstrated unprofessional behavior and his failure to correctly diagnose the broken bone of a dog under his observation for a period of days was evidence of an incompetence to recognize a broken bone in the practice veterinary medicine. Dr Joseph's statement that on the first visit he had told the owner to get x-rays done and the owner chose not to have the x-ray done until some weeks later was not credible as the owner cared about the treatment his pet was getting and trusted Dr Joseph's diagnosis, which proved to be faulty.

DECISION AND ORDER

For all the reasons discussed herein, the GBAHE hereby orders that
  1. Dr Joel Joseph is hereby publicly reprimanded and chastised for the shortfalls in professional conduct shown from the above findings. A copy of this Decision shall be transmitted to the national depository of veterinarian medical discipline, the American Association of Veterinary Medicine Boards' VIVA (Veterinarian Information Verifying Agency) whose database includes licensure and disciplinary information.
     
  2. Dr Joseph is instructed to obey the laws of Guam relative to the practice of veterinary medicine and to cooperate with other veterinarians in the transfer of the medical records of any client or former client, does the following: (a) completes ethics training and, (b) participates in a counseling program for nine (9) months designed to improve his ability to work cooperatively with fellow professionals. The ethics training is to be in person instruction and not by correspondence, if possible. It should be completed within nine (9) months.
     
  3. Finally, Dr Joseph is required to conduct training or a seminar to veterinarians and the public regarding "differential diagnosis in a limping canine" within nine (9) months of receiving the Board's Decision. By copy of this Decision, Guam veterinarians are invited and urged to participate in this training. Veterinarians are further notified that through the evidence heard in this case, the GBAHE has become acutely aware of the difficulties that veterinarians have in obtaining records of former clients and urges cooperation among all veterinarians to honor written authorizations to release records to succeeding veterinarians (or their staff) once the authorizations are issued.
By: [signature]
MAMIE C. BALAJADIA, Ed.D.
Acting Chair,
Guam Board of Allied Health Examiners

Date: [15 May 2009]