Fernando Cardenas, DVM, Respondent.
June 29, 2017
Complaint No. 2016009-5
Veterinarian License No. 4140
THIS MATTER coming on to be heard before the N.C. Veterinary Medical Board (“Board”) upon recommendation of the Board’s Committee on Investigations No. 5; and it appearing that Fernando Cardenas, DVM (“Dr. Cardenas”) has consented to the Board’s entry of this Order upon the following Findings of Fact and Conclusions of Law to resolve complaint No. 2016009-5 filed with the Board against him.
FINDINGS OF FACT
- Fernando Cardenas, DVM (“Dr. Cardenas”) is licensed by this Board as a veterinarian, holding license number 4140.
- The Board has jurisdiction of Dr. Cardenas and of the subject matter of this Consent Order.
- During all times relevant to this Consent Order, Dr. Cardenas owned and operated 3H Mobile Veterinary Services (“3H”) in New Hill, N.C.
- On 12/15/15, Ms. Kimberly Ely of Cary presented to Dr. Cardenas her 13-year-old male Dutch Warmblood horse for rehabilitation services. Dr. Cardenas accepted Ben as a patient and began providing rehabilitation services to him.
- On 1/4/16 Dr. Cardenas was away from the United States on vacation.
- On 1/4/16 Dr. Cardenas did not provide for supervision by a veterinarian of the rehabilitation and related services 3H employees were providing to Ben. Two of the 3H employees providing these services to Ben were Antonio Rivera and Sally Henry, neither of whom is a licensed veterinarian.
- On 1/4/16 Antonio Rivera provided to Ms. Henry xylazine in injectable form and directed her to administer an injection of this sedative to Ben, who was in a wash stall at 3H.
- Henry mistakenly administered the injection of xylazine into Ben’s carotid artery thereby causing him to suffer a seizure and fall to the floor of the stall. Ben’s fall resulted in cuts and scrapes to his body and other injuries, which caused his nose to bleed.
- No veterinarian on the 3H premises on 1/4/16 supervised or directed AntonioRivera and/or Sally Henry regarding their possession of xylazine and Ms. Henry’s administration of the injection to Ben.
- Another 3H employee, Ashley Jordan, observed Sally Henry administer a thexylazine injection to Ben, and she thereafter assisted 3H veterinarians and employees providing care to the horse following his seizure and fall.
- When Dr. Cardenas returned from vacation in early January, he learned that SallyHenry had given the injection of xylazine to Ben on 1/4/16 at the direction of Antonio Rivera. He also learned that Ashley Jordan had observed Ms. Henry administering the injection.
- By letter received 4/29/16, Ms. Ely filed a complaint with this Board alleging deficiencies in Dr. Cardenas’ treatment of Ben.
- Pursuant to Board Rule 21 NCAC 66.0601, Ms. Ely’s complaint was assigned for investigation to the Board’s Committee on Investigations No. 5, the members of which interviewed Dr. Cardenas about Ms. Ely’s allegations and his responses.
- According to Ashley Jordan’s statement to Committee No. 5 during her interview, Cardenas thereafter directed her if she were asked who administered the xylazine injection, to state that Mr. Rivera had administered it.
- During Committee No. 5’s interview with Dr. Cardenas, a Committee member asked him who administered the xylazine injection to Ben on 1/4/16. Dr. Cardenas responded that it was administered by Antonio Rivera when Dr. Cardenas knew that it had been administered by Sally Henry.
- This Consent Order resolves the investigation and findings regarding Board complaint number 2016009-5.
- Dr. Cardenas has agreed to the entry of this Consent Order by the Board. Based upon the foregoing findings and fact, the Board makes the following conclusions of law.
CONCLUSIONS OF LAW
- The Board has jurisdiction of Dr. Cardenas and the subject matter of this Consent Order.
- This Consent Order is entered by the Board under the authority granted by Article 11, Chapter 90 of the N.C. General Statutes and the administrative rules adopted thereunder.
- Dr. Cardenas has agreed to the entry of this Consent Order by the Board.
- On 1/4/16 Antonio Rivera’s possessing xylazine at 3H and furnishing it to Sally Henry and directing her to administer an injection of the sedative to Ms. Ely’s horse, Ben, without supervision and direction of a veterinarian, constituted the unlicensed practice of veterinary medicine in violation of the N.C. Veterinary Practice Act, including N.C.G.S. § 9010.
- Sally Henry’s administering the injection of xylazine to Ms. Ely’s horse, Ben, on1/4/16, without the supervision and direction of a veterinarian, constituted the unlicensed practice of veterinary medicine in violation of the N.C. Veterinary Practice Act, including C.G.S. § 90-187.10.
- Dr. Cardenas’ failing to ensure supervision and direction of non-veterinarian 3Hemployees Antonio Rivera and Sally Henry on 1/4/16 when they provided services to Ben, which included administering the injection of xylazine, constitute aiding and abetting the unlicensed practice of veterinary medicine in violation of the N.C. Veterinary Practice Act, including N. C . G. S . § 90-187.10.
- Dr. Cardenas violated N.C.G.S. § 90-187.8(c)(6) by the following acts which constitute incompetence in the practice of veterinary medicine:
(a) While he was on vacation in early January 2016, he failed to provide for supervision by a licensed veterinarian of the services rendered to 3H patients by Antonio Rivera when Dr. Cardenas knew or should have known that Mr. Rivera had unsupervised access to xylazine, which 3H veterinarians used for the sedation of patients; and
(b) While on vacation in early January 2016, he failed to provide supervision by a licensed veterinarian of Antonio Rivera’s and Sally Henry’s possession of xylazine and her administration of this sedative on 1/4/16 to Ms. Ely’s horse, Ben.
- Dr. Cardenas violated N.C.G.S. § 90-187.8(c)(6) by the following acts which constitute gross negligence in the practice of veterinary medicine:
(a) By directing 3H employee Ashley Jordan to state that Antonio Rivera administered the xylazine injection to Ben on 1/4/16. The Committee bases this finding on the statement made by Ms. Jordan during her interview with the Committee, and
(b) By responding untruthfully to the question posed by a member of Committee No. 5 during his interview that Antonio Rivera administered the xylazine injection to Ben when he knew Sally Henry had given it.
26. Dr. Cardenas’ response to the question from a member of Committee No. 5 during their interview with him about who injected Ben with xylazine was a misrepresentation to the Board in violation of N.C.G.S. § 90-187.8(c)(19) and Board Rule 21 NCAC 66.0205(1) as an untrue and deceitful statement.
CONSENT AND WAIVER OF FERNANDO CARDENAS, DVM
Fernando Cardenas, DVM, an adult under no disability, by signing this Consent Order, stipulates and agrees that: he has read its contents; he has had the opportunity to consult with an attorney about its contents prior to his signing; he does not contest it and he waives his right to contest the Findings of Fact, Conclusions of Law and the Order in any subsequent proceeding before the Board, or before a hearing panel of the Board, or in a Court of competent jurisdiction; he consents to the Board attorney, the Executive Director, and the members of Committee on Investigations No. 5 discussing the Consent Order with the other members of the Board or a hearing panel of the Board prior to its being entered by the Board; he consents to entry of this Order either by the Board or by a hearing panel of the Board, to be signed by the Board President, or by other Board members, or by the Executive Director; he understands the Consent Order’s effect upon his license as a veterinarian; he waives the right to a contested care hearing or other hearing on the facts or legal conclusions that are the bases of this Consent Order; he agrees to comply with the terms of the Consent Order; and he expressly waives his right to judicial review of this Consent Order under provisions of N.C.G.S. Chapter 150B, the Veterinary Practice Act, Board Rules, or other applicable law.
Based upon the foregoing Findings of Fact and Conclusions of Law, and with Dr. Cardenas’ express written consent and waiver, the Board enters the following Order.
- Dr. Cardenas’ violations of N.C.G.S. §§ 90-187.8(c)(6); 90-187.8(c)(19); and Rule 21 NCAC 66.0205(1), as recited above, are the bases for discipline against his veterinary license, No. 4140, issued by the Board.
- Dr. Cardenas’ veterinary license is suspended for one year [12 months], effective and beginning 12:01 a.m. July 1, 2017; provided, however:
(a) The initial thirty (30) days of this suspension is an active suspension and shall run from 12:01 a.m. July 1, 2017, through 12:00 midnight, July. 30, 2017; and
(b) So long as Dr. Cardenas complies with this Consent Order, at the conclusion of the thirty (30) days active suspension, the remaining eleven (11) months suspension shall be stayed and his license shall be placed on probation through June 30, 2018, under the terms and conditions of this Order.
3. The Board assesses against Dr. Cardenas a civil monetary penalty in the sum of $5,000.00 pursuant to N.C.G.S. § 90-187.8(b) and Board Rule 21 NCAC 66.0601(m) for his violations of the above-recited provisions of the Veterinary Practice Act and Board Rules.
4. The $5,000.00 civil monetary penalty shall be paid to the Board on or before July
5. The amount of this civil monetary penalty has been determined by the Board to be supported by the following statutory factors:
(a) The duration and gravity of Dr. Cardenas’ violations [N.C.G.S. § 90-187.8(b)(2)] in failing to provide supervision by a veterinarian of the services at 3H being delivered by Antonio Rivera and Sally Henry to the horse, Ben, which resulted in injury to the horse by the injection of xylazine on 1/4/16; and his directing a 3H employee to state that Antonio Rivera administered the injection, knowing that was not true; and making an untrue statement to Committee on Investigations No. 5 that Antonio Rivera administered the xylazine injection to Ben.
(b) The harm to Ms. Ely’s horse, Ben [N.C.G.S. § 90-187.8(b)(1)], resulting from the injection of xylazine by Sally Henry, who was directed to do so by Antonio Rivera, when neither was supervised by a veterinarian.
(c) The statement to the Board [N.C.G.S. § 90-187.8(b)(4)] with respect to Cardenas’ directing 3H employee Ashley Jordan to answer falsely if asked who administered the injection of xylazine; and his misrepresentation to the Committee by his statement that Antonio Rivera administered the xylazine injection to Ben.
6. While this Order is in effect, Dr. Cardenas shall not violate this Order, the Veterinary Practice Act or Board Rules.
7. If the Board receives information tending to show that Dr. Cardenas has violated this Order, the information shall be investigated; and if the investigation discloses preliminarily that there is probable cause to believe that he has violated this Order, he shall be given notice of the alleged violation and that the Board will conduct a hearing pursuant to applicable statutes and rules on the alleged violation; and upon determining that he has violated the Order, the Board’s hearing panel may, but is not required to, activate all or part of the stayed suspension imposed by this Order and may impose such other discipline permitted by applicable statutes and rules; and provided further that, unless otherwise decided by the hearing panel, Dr. Cardenas’ veterinary license shall be suspended from the date the notice of hearing is issued through the hearing and any subsequent appeals.
8. If during the term of this Order the Board receives a complaint against Dr. Cardenas alleging violations of the Practice Act and/or Board Rules, but not alleging a violation of this Order, such information shall be investigated and determined pursuant to the Veterinary Practice Act and Board Rules. A violation of the Veterinary Practice Act and/or Board Rules may constitute grounds that Dr. Cardenas has violated this Order.
9. During the active portion of license suspension, nothing in this Order precludes the continued operation of the 3H facility under the supervision of a licensed veterinarian.
10. The Board retains jurisdiction of this matter until all requirements of this Consent Order have been completed.
N.C. VETERINARY MEDICAL BOARD
Kim D. Gemeinhardt, DVM President