THE NORTH CAROLINA VETERINARY MEDICAL BOARD
Petitioner,

 Vs.

KEVIN A. MONCE, D.V.M.
License No. 3661,
Respondent.

)
)      CONSENT ORDER
)                  Complaint No. 00006-1-1
)                  and 00048-2-1
)

THIS CONSENT ORDER is before the North Carolina Veterinary Medical Board ("Board") for consideration and entry upon recommendation of the Board's Committee on Investigation No. 1, and with the consent of Kevin A. Monce, D.V.M ("Dr. Monce"), a licensee of this Board.  After consideration of the matters and things on which the Order is based, the Board makes the following Findings of Fact and Conclusions of Law, and enters the following Order, with the consent of Dr. Monce:

Findings of Fact

1.  Dr. Monce holds license No. 3661 originally issued by this Board June 13, 1984.

2.  The Board has jurisdiction of Dr. Monce as its licensee and of the subject matter on which this Order is based.

3.  Dr. Monce has been represented by Michael Crowell, attorney, of Raleigh, N.C. in this matter.

4.  As of the date of the entry of this Order, Dr. Monce maintains a mobile practice facility with an address of P.O. Box 15396, Wilmington, NC, 28408, and a residence address of 20 Shadow Court, Moncure, NC 27559.

5.  Dr. Monce consents to the entry of this Order with the Board to resolve the allegations and issues in the Notice of Hearing issued by the Board dated October 15, 2002 in this matter concerning complaint no. 00006-1-1 and complaint 00048-2-1.  This Consent Order is entered into pursuant to G.S. §105B-41(c) as settlement of a contested case.

6. There are factual bases for the entry of this Order.

7.  Between August, 1994 through 1997, Dr. Monce delivered veterinary medical services at 3319 Chapel Hill Blvd., Durham, N.C., under the name Veterinary Medicine Referral Hospital without first obtaining a facility inspection and approval from the Board that the facility met the minimum standards for the delivery of veterinary medical services.  While Dr. Monce wrote on his 1994 license renewal form that the premises had been inspected "as an emergency clinic", he acknowledged that it has not been inspected "as a referral hospital."  Obtaining inspection and approval from the Board remained Dr. Monce's responsibility and he did not take other actions to have the facility inspected and to obtain the approval from the Board that the facility met the minimum standards for the delivery of veterinary medical services.

8.  Dr. Monce also delivered veterinary medical services at 2111 High House Road, Cary, under the name Veterinary Medicine Referral Hospital between March, 1997 and March, 1998 without first obtaining a facility inspection and approval from the Board that the facility met the minimum standards for the delivery of medical veterinary services.

9.  Dr. Monce failed to obtain approval as required by Board Rule for the name Veterinary Medicine Referral Hospital prior to his delivery of veterinary medical services under that name during the years and at the above-named facilities in Durham and Cary, respectively.  While Dr. Monce listed the name Veterinary Medicine Referral Hospital on his Board veterinary license renewal applications for 1995, 1996 and 1997, respectively, his obtaining required approval from the Board remained his responsibility.  Dr. Monce failed to obtain approval of the name as required by Board Rule prior to his delivery of veterinary medical services under that name.

10.  Between 1999 and until February, 2001, Dr. Monce offered to deliver and delivered veterinary medical services through an uninspected mobile practice facility trailer.  In February, 2001, he obtained Board inspection and approval for the use of this mobile practice facility trailer and obtained Board approval for the name of his practice, which is "Kevin Monce, DVM, DACVIM, Mobile Office."

11. From at least 1999 through 2001, Dr. Monce offered to deliver and delivered veterinary medical services through his affiliation with VetSound, Inc., a business corporation.  During this time one aspect of his practice was to consult with individual veterinarians in the interpretations ultrasound images.  Dr. Monce's professional and business affiliation with VetSound, Inc. was such that, whether intended or not, he delivered or permitted the delivery of veterinary medical services through it.

Based on the foregoing Findings of Fact, the Board makes the following:

Conclusions of Law

1.  The Board has jurisdiction of Dr. Monce and of the subject matter on which this Order is based.

2.  Dr. Monce violated Board Rule 21 NCAC 66.0207(b)(15) by failing to obtain an inspection and approval from the Board of the facility he maintained at 3319 Chapel Hill Blvd., Durham, N.C. under the name Veterinary Medicine Referral Hospital in order that the Board could confirm that the facility met the minimum facility and practice standards required of all locations where veterinary medicine is practiced in this State.  This violation continued from August 1994 through 1997.  While on his 1995 veterinary license renewal from to the Board, Dr. Monce listed Veterinary Medicine Referral Hospital as an uninspected "referral hospital", he did not fulfill his responsibility to take additional actions to obtain inspection and approval for that facility from the Board in order to meet Board requirements.

3.  Dr. Monce violated Board Rule 21 NCAC 66.0207(b)(15) by failing to obtain an inspection and approval from the Board of the facility he maintained at 2111 High House Road, Cary, N.C., under the name Veterinary Medicine Referral Hospital in order that the Board could confirm that the facility met the minimum facility and practice standards required of all locations where veterinary medicine is practice in this State.  This violation continued from March, 1997 through March, 1998.

4.  Dr. Monce violated Board Rule 21 NCAC 66.202 by utilizing the name Veterinary Medicine Referral Hospital for the above facilities in Durham and Cary, respectively, between August, 1994 and through 1998 without first obtaining Board approval for the use of this name.  While Dr. Monce listed the name Veterinary Medicine Referral Hospital on his Board veterinary license renewal forms for 1995, 1996 and 1997, respectively, it was still his responsibility under said Rule to obtain Board approval for the use of this name.

5.  Dr. Monce violated Board Rule 21 NCAC 66.0207(b)(15) by failing to obtain an inspection and approval from the Board of his mobile practice facility to confirm that this mobile facility met the minimum practice and facility standards required of all locations where veterinary medicine is practiced in this State.   This violation continued from 1999 through February 2, 2001.

6.  Dr. Monce's professional relationship with VetSound, Inc., a business corporation, resulted in his express or implied delivery of veterinary medical services through the name VetSound, Inc. without obtaining Board approval for the use of that name.  By doing so, he violated Board Rule 21 NCAC 66.0202.  While Dr. Monce listed the name VetSound, Inc. on his Board veterinary license renewal forms fro the years 1999 and 2000, respectively, he did not provide the Board any limitations on his affiliation with this corporation.  The Board has concluded that his listing of the name of VetSound, Inc. led to reasonable conclusion that he was delivering or permitting the delivery of veterinary services through that name.

7.  Dr. Monce's affiliation with VetSound, Inc. as described in the above findings and conclusions, resulted in violations of G.S. § 90-187.11 and G.S. § 90-187.12. statutes which prohibit a veterinarian from engaging in and offering to engage in the delivery of veterinary medical services through a business corporation.  These violations occurred during the years 1999, 2000 and 2001.

8.  Pursuant to N.C. Gen. Stat. § 90-187.8 and Board Rule 21 NCAC 66.0601(m), the Board may assess a civil monetary penalty against Dr. Monce for statutory and Board Rule violations cited above, subject to findings by the Board of one or more factors in G.S. § 90-187.8(b).

9.  In deciding to assess a civil monetary penalty against Dr. Monce in the amount of $5,000.00, the Board has considered the factors delineated in G.S. § 90-187.8(b) and find that the penalty is supported by the duration [(b)(2)] and the continuing pattern [(b)(3)] of the violations.

Consent and Waiver of Kevin A. Monce, D.V.M.

Dr. Kevin A. Monce, an adult under no disability, by affixing his signature to his Order, stipulates and agrees that:  he has read its contents;  he has had the opportunity to consult with his attorney, Michael Crowell of Raleigh, N.C., about its contents and effect prior to 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 in a court of competent jurisdiction;  he consents to the Board's attorney, the Executive Director, and the members of Committee on Investigations No. 1 discussing the Order with the remaining members of the Board;  he consents to the Board's entry of this Order, to be signed by the Board President, or other Board member or the Executive Director; he understands the Order's effect upon his license as a veterinarian; and he expressly waives his right to judicial review of this Consent Order under the provisions of the NC Gen. Stat. Chapter 150B, the Veterinary Practice Act, Board Rules, or other applicable law.

Based on the foregoing Findings of Fact and Conclusions of Law, and upon the express consent and waiver of Dr. Kevin A. Monce, the Board enters the following:

Order

1.  Upon entry of this Order, the license to practice veterinary medicine issued by the Board to Dr. Kevin A. Monce, license no. 3661, is suspended for a period of thirty (30) days, but this suspension shall be stayed and Dr. Monce shall be placed on a period of probation for a period of one (1) year, under the terms and conditions of this Order, provided that during the period of stayed suspension:
(a)  Dr. Monce shall comply with the terms of this Order,
(b)  Dr. Monce shall not violate that statutes and administrative rules governing veterinary medicine in this State;
(c)  Dr. Monce shall not deliver veterinary medical services under the name of or through a business corporation;

2.  If during the term of this Order the Board receives credible information or complaint of alleged violation by Dr. Monce of this Order, the allegations of violation shall be investigated by one of the Board's Committees on Investigations, pursuant to the Veterinary Practice Act and Board Rules.  The finding of the investigation will be reported to the Board for further action, if necessary.

3.  Dr. Monce is assessed a $5,000.00 civil monetary penalty for the violations and findings of the Veterinary Practice Act and Board Rules set forth in the Conclusions of Law.  This civil monetary penalty will be paid as follows:  $2,500.00 will be paid into the Board office within 30 days of the entry of this Order and the balance of $2,500.00, if not sooner paid shall be paid in 10 consecutive equal monthly payments of $250.00 beginning June 1, 2003, provided that the entire civil monetary penalty shall be paid within one year of the entry of this Order.

4.  The Board may conduct one or more unannounced inspections of Dr. Monce's practice to monitor compliance with the Order.

5.  The Board retains continuing jurisdiction of this matter and may review it from time to time at its discretion.

This 7th day of April, 2003.

N.C. VETERINARY MEDICAL BOARD
By:  Thomas M. Mickey, Executive Director

CONSENTED TO:
Kevin A. Monce, D.V.M.
Date:  4-4-03

DISPARITY
COMPLAINT 00006 "DEAS COMPLAINT" (view PDF document)	COMPLAINT 00048 "BOARD COMPLAINT" (view PDF document)	PROPOSED CONSENT ORDER 00006 AND 00048 (view PDF document)	NEGOTIATED CONSENT ORDER 00006, 00048 AND 02 VMB 1712 (view PDF document)
voted on March 23, 2001; issued October 17, 2001;	voted on June 14, 2001; offered via Consent Order October 18, 2001;	offered by the NCVMB March 22, 2002;	mutually agreed upon by Kevin Monce and the NCVMB on April 4, 2003
rejected by Kevin Monce	rejected by Kevin Monce	rejected by Kevin Monce
LETTER OF REPRIMAND	ONE YEAR SUSPENSION: 3 MONTHS ACTIVE 9 MONTHS STAYED	SUSPENSION: 0 DAYS ACTIVE DAYS STAYED TO BE DETERMINED	30 DAY SUSPENSION: 0 DAYS ACTIVE 30 DAYS STAYED
-	TWO YEARS PROBATION	TWO YEARS PROBATION	ONE YEAR PROBATION
$3000 FINE	$5000 FINE	$5000 FINE	$5000 FINE

1. You allowed Alex to be brought by Dr. Jones and Nancy Deas from Durant Road Animal Hospital and Kennel, PLLC (the "Hospital") into your trailer in the Hospital parking lot knowing that it was not inspected and approved for the delivery of veterinary medical services.  While under your care in this facility you conducted invasive procedures on Alex, including a biopsy of his liver and obtaining of other tissue and fluid samples [Note: Specifically this was removal of reddish brown abdominal fluid, spleen biopsy, fine needle aspirate of periportal lymph node and 3 separate liver biopsies].  Your acts and omissions constituted a blatant disregard of the Veterinary Practice Act and Board Rule requirements.  Your conduct violated the minimum sanitary and practice requirements of Board Rule .0207(b)(15).  Further, your conduct in leading Dr. Jones, Nancy and Edna Deas to believe that the facility was appropriate for the delivery of veterinary medical services, when it was not, constituted an act of misrepresentation in the veterinarian-client-patient relationship in violation of G.S. § 90-187(c)(19). Your total conduct constituted incompetence and malpractice in the practice of veterinary medicine in violation of G.S. § 90-187.8(c)(6).

2. The Committee believes you were a primary veterinarian for Alex, often sharing this status with Dr. Jones. Although you have referred to your capacity as only that of a consultant, the facts show otherwise.  You did a great deal more than merely consult.  You had a history of treating Alex for several years, apparently long before you identified yourself as a consultant.  Dr. Jones as well as the Deases contacted you in December, 1999 to provide opinions, diagnosis and care of Alex.  You assumed the responsibility as a primary care giver.  The Deases called you at home on at least three occasions during this period of time.  On the evening of January 3 and the early morning hours of January 4 Nancy Deas called you and you gave her instructions [Note: administer enemas to our unresponsive dog] and advice regarding treatment.  The Deases looked to you as a primary care giver.  Therefore, as a primary veterinarian, you should have provided more supportive care for Alex at the Hospital during the afternoon of January 3, as well as in the late evening of January 3 and early morning of January 4.  These omissions are further discussed below.

3.  The Committee finds you violated Board Rule .0207(b)(13) [SIC] [Note: George G. Hearn, Esq., NCVMB attorney, acknowledged when reviewing the draft Petition of Hearing that this rule number was a typographical error which was corrected in the submitted Petition of Hearing as is reflected here.] Administrative Board Rule 21 NCAC 66.207(b)12) [Minimum standards for record-keeping]; and 66.0207(b)(11)(C) [Minimum standards for maintaining a record of all drugs administered or dispensed on an individual animal] Your record keeping was extremely poor, and you did not maintain a complete medical record for Alex.  While you wished to deliver services in a consultive-type capacity, as noted above you were actually a primary veterinarian for Alex.  Moreover, a facility providing limited veterinary services, even an approved one, is required by Board Rule .0208(b) to comply with the minimum standards of Board Rule .0207.  Record keeping is one of these standards.

4.  Your total care of Alex fell below the minimum competency standards of G. S. § 90-187.8(c)(6), especially in light of your status as diplomate of the American College of Veterinary Internal Medicine.  You were at least a primary veterinarian for Alex from late December 1999 through the early morning of January 4, 2000.  You had treated Alex and the Deases' other dog, Gus, for several years.  You were familiar with Alex's general condition and you knew his age.  This 14-year old dog first needed precautionary support before, during and after your administration of anesthesia.

After Alex was transported from the trailer back to the Hospital following the biopsy procedure, you assisted Dr. Jones in further treatment and diagnosis.  Shortly thereafter you left the facility before Alex had recovered.  When Alex did not readily recover from the anesthesia, this was a second change for you to respond with supportive care, with fluids or otherwise.  But you were not available. Perhaps because you incorrectly viewed your role as a consultant, you left the Hospital prior to Alex's discharge.

Was your treatment of Alex during the day of January 3 appropriate and complete?  The diagnostic procedures were appropriate, but you erred in failing to provide treatment therapies readily available, such as the administration of fluids, when Alex did not readily recover from the anesthesia. 

Did the recommendations that you made at or about 12:30 a.m. January 4 meet the minimum veterinary standard of care?  No.  There appears to be little basis in the records for you to make a diagnosis then that Alex had hepatic encephalopathy, when nothing else was mentioned about that previously.  You had not seen Alex for almost 12 hours.  The Committee believes there are risks associated with making that type of diagnosis in this situation.

5. Did you deliver veterinary medical services through the name of VetSound, the name of a business corporation, VetSound, Inc.?  It appears that VetSound, Inc. owned the trailer, perhaps as co-owner with Renee Dailey Daniel, in which you treated Alex on or about January 3, 2000.  A veterinarian is not permitted to deliver veterinary medical services through a regular business corporation.  On this occasion it appeared that you were conducting a veterinary medical practice through the name VetSound.  This violation is another aspect of your disregard of the statute and rules concerning veterinary medicine in this State.

Pursuant to NC Gen. Stat. § 90-187.8(b) and Board Rule .0601(m), the Veterinary Medical Board has voted to impose and collect from you a civil monetary penalty in the amount of $3000.00 for your violations of the Veterinary Practice Act and Board Rules, as discussed, which form the basis for this letter of reprimand.  The amount of this civil penalty has been determined upon a finding by the Board of the following factors, only one of which is necessary to sustain the imposition of the penalty:

1. NC General Statute § 90-187(b)(2) [duration and gravity of violation].  You treated Alex in an uninspected facility, a serious violation.

2. N. C. General Statute § 90-187.8(b)(3) [willful or intention violation or one reflecting a continuing pattern].  Your treating Alex in an uninspected mobile facility was committed willfully and intentionally.  It also appears to have reflected a continuing pattern.  You disregarded the terms of the Practice Act and Board Rules.

3. N. C. General Statute § 90-187.8(b)(4) [a violation involving elements of fraud or deception to a client or to the Board].  Treating Alex in an uninspected mobile facility was an act of deception to Nancy and Edna Deas in the veterinarian-client-patient relationship, to the Veterinary Medical Board and to Dr. Dana Jones, your colleague.

4. N. C. General Statute § 90-187(b)(6) [profiting by violation].  The Board finds that you profited by charging for professional fees performed in the uninspected mobile facility.

The decision of Committee 1 has been reported to and accepted by the Veterinary Medical Board.

 *** AND ***
Not Included in the Consent Order from NCVMB initiated Complaint 00048: 

5(d) Board Rule .0205(1), by making statements and representations to the Veterinary Medical Board in January, 1999 about the nature of your practice which were untrue, or which were so incomplete or inaccurate as to amount to misrepresentations.  You misled the Board by not disclosing your ongoing practice in the mobile facility.

5(e) Board Rule .0205(4), by misleading Nancy G. Deas and Edna E. Deas through the implied misrepresentation that the facilities in which you provided veterinary medical services to the Deases' dogs Alex and Gus between 1995 and 2000 were in compliance with the statutes and rules of the Board.

5(f) Board Rule .0208, by not complying with the provisions of this Rule for facilities providing limited veterinary services

6. The advertisement of page 1266 of the BellSouth Yellow Pages for 1998 under  your name violated the following Rules or statutory subsections:
(a) Board Rule .0207(b)(15). by soliciting to provide veterinary medical services facilities in Cary, Raleigh and Wilmington without having obtained a Board inspection and approval prior to commencing the operation of the facilities.
(b) Board Rule .0205(4), by impliedly misrepresenting to the public that your facilities in Cary, Raleigh and Wilmington were in compliance with the Veterinary Practice Act and Board Rules with respect to the treatments for services offered.

*** AND ***
Not Included in the Consent Order from the 02 VMB 1712 Notice of Hearing :

9.  In this treatment of Alex on January 3, Dr. Monce violated the veterinary medical standard of care and violated G. S. § 90-187(8)(c)(6) by the following acts, respectively, which constituted incompetent or other malpractice in the practice of veterinary medicine:
(a) Dr. Monce failed to provide precautionary veterinary medical support for Alex before, during and after he administered drugs to the dog on January 3 prior to obtaining tru-cut needle biopsies, tissue samples and fluids.
(b) Dr. Monce failed to provide treatment therapies which were available when Alex did not readily recover from the drugs.
(c) Dr. Monce failed to assess Alex's level of consciousness and failed to provide appropriate supportive care, including administering oxygen, when the dog did not readily recover from the drugs.

22.  In the late hours of January 3 and the early hours of January 4, Nancy Deas spoke by telephone several times to Dr. Jones and twice to Dr. Monce about Alex.  Nancy Deas related to Dr. Monce Dr. Jones' treatment earlier that evening (January 3).  Dr. Monce had not mentioned that condition or the possibility of that diagnosis previously to the Deases.  Dr. Monce had not observed Alex for almost 11 hours.  Dr. Monce suggested a diagnosis that Alex had hepatic encephalopathy.  Dr. Monce also instructed the Deases to give Alex an enema and, contrary to what Dr. Jones had advised, to refrain from turning Alex from side to side.

23.  Dr. Monce's communication of a diagnosis of hepatic encephalopathy for Alex at the time and under the circumstances described above violated the veterinary medical standard of care and was an act of incompetence or other malpractice in the practice of veterinary medicine in violation of G. S. § 90-187.7(c)(6).

25.  Dr. Monce violated Board Rule 21 NCAC 66.0207(b)(12) regarding minimum standards for recordkeeping in his treatment of Alex between December 29, 1999 and January 4, 2000 by not keeping complete medical records for Alex.

10.  Board Administrative Rules 21 NCAC 66.205(1) and 66.205(4) [Grounds for disciplinary action including untrue statements or willfully misleading conduct and representations in any professional relationship, or in veterinary-client-patient relationship].