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Why the Bureau of Health Care Services v. Dr. Pol is so important

Dr. Jan Pol was found guilty of not meeting required minimum standards of veterinary care, but his conviction 
and penalty were reversed

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Dr. Pol, practicing veterinarian in rural Michigan, the star of the National Geographic TV series The Incredible Dr. Pol, is the subject of recent scrutiny.
Photo courtesy National Geographic Channel

 Any time you have an aggrieved owner in your practice, you face the potential for a veterinary board investigation and immediate risk to your veterinary license. Veterinary boards represent the greatest threat to your right to practice your profession, which is why it’s vitally important that you do everything in your power to ensure that your state regulator conducts its proceedings to the highest standards of justice.

The veterinary profession has many reasons to thank the Michigan Court of Appeals; it has been more than one year since this court made its judgement in Bureau of Health Care Services v Jan H Pol DVM, and the value and importance of its anticipated decision to practicing veterinarians has not diminished.

The easiest and most effective way to describe standards of veterinary board administrative actions is as a list of rights that vest with the accused veterinarian. Most state veterinary regulators in the U.S., Canada, and across the world appear to have great difficulty in managing the disciplinary process while still giving full recognition to the many rights of the accused veterinarian. In fact, some boards appear to ignore the rights of veterinarians altogether. The court took great pains to set out how Dr. Pol’s due process rights were violated and how the Michigan regulator failed to live up to its obligations.

Veterinary licensing boards are charged with setting and regulating standards of veterinary practice. It is the function of the courts, in turn, to oversee the standards of veterinary discipline applied by these regulatory boards and to provide guidance to veterinary boards in carrying out this function.

To recap the scenario

Dr. Jan Pol is a practicing veterinarian in rural Michigan and the star of the National Geographic TV series The Incredible Dr. Pol. Following a complaint of substandard veterinary practice regarding Dr. Pol’s surgery and treatment of a Boston terrier named Mr. Pigglesworth, the Michigan state veterinary regulator and the Department of Licensing and Regulatory Affairs (DLRA) found Dr. Pol guilty of not meeting required minimum standards of veterinary care and censured him. Dr. Pol then took this finding on appeal to the court, which then reversed his conviction 
and penalty.

The first criticism that the court had of the DLRA was that Dr. Pol was held to be negligent and incompetent, even though he successfully saved Mr. Pigglesworth’s life and the patient made a full recovery. Naturally, the fact a patient makes a full recovery is not proof that the treating veterinarian met the minimum standards of care. As we all know, there are many patients that have made a full recovery despite the treatment that was provided! The court made the interesting point that, while it recognizes that the definition of incompetence in the legislation does not require proof of actual injury, the court fails to see how the successful outcome in a particular case can be ignored when the allegations of negligence and incompetence are based upon that single case alone.

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This is a major failing with all veterinary boards: Most cases in which a veterinarian is accused of negligence and incompetence relate only to one single case. As we are all aware, no veterinarian can ever hope to cure every patient, and owner-filed complaints, by their very nature, pertain only to those cases in which the outcome was adverse. It would be far better for veterinary regulators to frame their allegations in terms of “failure to meet required standards in a particular case” rather than as “incompetence” and “negligence.” The latter terms might be appropriate only where there was evidence of a pattern stretching over many cases.

The primary cause for the DLRA’s failure on appeal was that it had relied on two vaguely worded provisions in the Michigan Public Health Code, together with expert evidence, on which to base the prosecution and conviction. These provisions generally refer to the “violation of general duty, consisting of negligence or failure to exercise due care, including negligent delegation to or supervision of employees or other individuals, whether or not injury results, or any conduct, practice, or condition 
that impairs, or may impair, the ability to safely and skilfully engage in the practice of the health profession.” Incompetence is defined in the code as “a departure from, or failure to conform to, minimal standards of acceptable and prevailing practice for a health profession, whether or not actual injury to an individual occurs.” The DLRA then called various expert witnesses who testified that, in their opinion, Dr. Pol’s standards of care failed to meet the standards set out in these provisions.

The court found there is no actual legal requirement in Michigan that determines a veterinarian must carry out surgery in a sterile environment, wear surgical gloves, a gown, a mask, and a cap during surgery, provide intravenous therapy, use specific types of anesthesia, or provide specific forms of postoperative treatment or nursing. Therefore, the court found that there is no basis in law on which to establish a violation when these are not followed. What the DLRA did, in effect, was fabricate the case against Dr. Pol out of thin air, based on two vague, general provisions and the opinions of carefully selected witnesses. When you think about it, it’s a standard of justice no higher than what the witches of Salem received during their trials.

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It is clear that, for the prosecution of a veterinarian to have any validity, the alleged violation must be clearly and specifically proscribed in legislation, widely accepted by the profession, and freely available for any veterinarian to read before committing the alleged violation, so that the veterinarian is under no illusion that this action or omission would constitute a violation.

Beyond trial allegations

Another common due process rights violation of a veterinarian occurs when the trial goes beyond the allegations levelled against the veterinarian. In Dr. Pol’s case, the DLRA determined that Dr. Pol had violated sections of the code not mentioned in the allegations against him and had introduced evidence against him that went beyond the allegations. The court was clear that the law does not allow a person to be found guilty of violations that were not contained in the charges made against them. One of our universal basic rights, contained in the right to due process, is to be provided with full details of the case against us, so that we are given adequate opportunity to fully prepare our defense to allegations made against us. To introduce new allegations, or to question witnesses beyond the scope of the allegations or to find the veterinarian guilty of allegations with which he had not been charged, are common failings by veterinary regulatory authorities.

At Dr. Pol’s trial, the court considered whether his admissions to three allegations had established a breach of duty, negligence, or incompetence in terms of the code. The court was clear on making the distinction between a “common standard procedure” and incompetence/negligence, and that failure to carry out the former can never automatically equate with the latter. In short, even if the majority of the profession believed it is a required minimum standard of veterinary practice to administer intravenous fluids following a car accident, the fact this is not written in law means that an individual veterinarian who does not do so in a particular case cannot be criticized for having failed to do so.

A fundamental basis for Dr. Pol’s defense had been that the owner had placed a financial limit on the treatment of $300, failing which the dog would have been euthanized. The DLRA had argued that cost is an irrelevant factor in relation to the provision of minimum standards of care. The court rejected this argument, stating that wherever an owner places a cost restraint on treatment, particularly where euthanasia is the alternative, cost must play a role in the veterinarian’s decision-making process. The court noted that this represented a stark difference between veterinary medicine and human medicine. This is an interesting decision, as it runs contrary to the approach used by most veterinary boards around the world. Many veterinarians have been disciplined for failing to provide care to minimum standards, even when the owner would have been unable to afford to pay for these standards.

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The court concluded there was no reasonable basis on which Dr. Pol could have been found guilty; further, it couldn’t say that the guilty finding was supported by competent, material, and substantial evidence on the whole record or that the evidence submitted established a clear standard of care that Dr. Pol had violated. Therefore, the court was obliged to set aside the conviction and penalty.

Obviously, it’s important that practicing veterinarians are familiar with the regulations that govern the practice of veterinary medicine in their jurisdiction. But it is even more important, when faced with defending a filed complaint, that veterinarians don’t take the situation at face value and simply accept the board’s process.

The real value of the Pol decision is to illustrate that the standard of justice with veterinary boards can be particularly poor, that the disciplinary process is complicated and fraught, and that veterinarians are unlikely to be accorded the standard of justice to which they are entitled. There are many frivolous, vexatious, or groundless complaints filed against veterinarians each year, yet these are taken seriously by veterinary regulators. You may easily find your license under threat even though you don’t believe that the allegations against you are substantial or fair, and it is important for you to fight hard to protect your right to practice veterinary medicine. In fact, it behooves the entire veterinary profession to be ever vigilant and vocal when boards do not carry out their function properly. After all, you never know when it will be your turn next.

Dr. David Carser graduated as a veterinarian in 1982 and obtained his law degree and Certificate in Medicine and Law in 2000. He co-founded the Veterinary Defence Association in 1992 and the Chicago-based Veterinary Defence Association (America) in 2009. Contributors’ opinions do not necessarily reflect those of Veterinary Practice News.

15 thoughts on “Why the Bureau of Health Care Services v. Dr. Pol is so important

  1. I would draw a slightly different message from the ruling. The case strikes me as less about due process and more about the fundamental concept of a standard of care. Effectively, it reinforces that no standard of care exists for most veterinary practice, and even when one does, it ceases to apply if an owner claims financial limitations preclude them from taking advantage of it. Other board cases also illustrate the general principle that virtually any medical practice delivered in good faith appears to be acceptable, particularly if the client also believes it to be effective or if it cannot be directly shown to have inured or killed a patient (e.g. http://skeptvet.com/Blog/2011/01/dr-gloria-dodd-a-case-study-in-the-failure-of-government-regulation-of-veterinary-medicine/).

    Science and scientific evidence are, from a legal perspective, irrelevant in determining what is reasonable medical practice and what is not. The courts will not take on the role of setting medical standards, nor should they since their expertise is legal, not medical. Unfortunately, the profession, and organizations such as the AVMA, also refuse to take a position on most standard-of-care questions, preferring to protect practitioner autonomy (and income) over the welfare of patients or the interests of owners. In this environment, it sometimes seems as if anything goes, medically speaking.

    Court are rightly concerned about fraud, deliberate cruelty, inappropriate use of controlled drugs, inappropriate treatment of clients and staff, and non-medical behavior. But no one in the legal or veterinary domain seems to believe that establishing science-based standards of care for medical behavior is important for protection of the public despite the monopoly on practice of veterinary medicine granted by the licensure system. Even cases which draw outrage from veterinarians and animal welfare advocates or which seem obvious and egregious are often acceptable from a narrow legal point of view.

    It is appropriate, of course, to protect the rights of the accused. But I suspect it more often the lack of meaningful action in response to putative malpractice results from, as you point out, the vague and meaningless nature of veterinary practice acts, and the absence of anything substantive that can be viewed as an enforceable standard of care. As a clinician, I suppose I should be grateful to have such autonomy and protection from challenges to my judgement and practices. However, I can’t help but be a little uncomfortable by the notion that science and evidence play negligible roles in determining acceptable and unacceptable medical practice and that the public is largely left to the mercy of the beliefs of individual veterinarians and the views of a legal system not designed to consider science as a critical element to protection of the public from inappropriate or ineffective medical practice. There is a reason such medical anarchism was largely replaced in the 20th century in human medicine, and for all the trouble intrusive government regulation can cause, cases like those of Dr. Pol and Dr. Gloria Dodd seem to suggest we may have strayed too far in the direction of caveat emptor.

    1. Brilliant response! And, as you state so eloquently, an extremely pathetic reflection on both our profession and the ramifications of a complete lack of any reasonable standard of care…
      Lack of death is NOT an appropriate measure of medical success…
      As someone who has practiced in both rural and semi-rural areas, the trope that we cannot provide quality medicine and adhere to an actual standard of care simply does not stand up to scrutiny (even though LEGALLY, we could spit into the incisions we make).
      As a specialist and a clinical bioethicist, I found this ruling to be violating on so many levels.
      Yes, we need to protect the rights of the accused, but just as importantly, we have a bioethical obligation to protect the rights of our patients to enjoy a circumstance in which the veterinary professionals entrusted with their lives do not recklessly put them directly into harm’s way.
      “There is a reason such medical anarchism was largely replaced in the 20th century in human medicine…” Well stated, Dr. McKenzie, well stated.

  2. A lot of people are jealous of this doctor if the patient makes a full recovery and lives life to the fullest don’t complain. There are a lot of doctors out there that will tell you in a heart beat that if you do not have just and just x amount of dollars then go look elsewhere. Dr. Pol would never do that. He would walk out of that door before he would ever harm a animal..

    1. There are also a lot of people who may seek to file a suit against a particular veterinarian who has a high profile in his community – certainly Dr. Pol is a high profile individual. State boards aside, each veterinarian establishes for himself or herself what standard of care they will hold themselves up to – on a personal level. There are those vets who will do anything for a dollar, and there are those who will provide whatever care they can without losing too much – because after all, it is a business. Most veterinarians end up giving away a lot of what they do for free – that ultimately becomes part of the reward veterinary practice. Kudos to the Court for making DRLA take a dose of their own medicine!

  3. Reading the Appeals Court decision, there is no indication that Mr. Pigglesworth’s owner was involved in the complaint. The complaint was made to DRLA by an out-of-state veterinarian whose knowledge of the case was obtained solely from watching Dr. Pol’s TV program. Seems like a bit of a witch hunt, but with a predetermined and biased attitude as though the DRLA had been looking for an excuse.

    https://law.justia.com/cases/michigan/court-of-appeals-unpublished/2016/327346.html

  4. How about all the vets griping read the disclaimers at the beginning of the show! If you don’t agree with his methods don’t use him as your vet. Thousands will disagree with you. Old school methods are often cheaper and just as effective as spending thousands on new equipment and other “required” crap.

  5. What’s up with the campy night cap with Dr. Pol? They should go back to the way it was originally filmed. This new format is so hokey.

  6. I tuned in today at a point in the show where the brusk female vet was in the process of delivering two calves. The poor cow was on the floor foaming at the mouth and groaning with pain and distress. The vet,irritated, said, “Get on with it, you dumb cow!” The farmer was suffering a distress of his own, considering what his cow was going through. What is a woman with such insensitivity doing on a show such as this one.

    Dr. Pol himself, too often handles small, sick animals with a heavy hand. He is not a gentle person by nature, yet struts about with an air of self-importance.
    His son, Charles however, brings a most positive counter-balance to the crude mannerisms of his father.

    1. Oh Grow up! Or don’t watch the show.
      These animals are livestock. You can’t move them to OR to work on them.
      The care of the animals has to fit the use the animals are being put tool
      Farmers cannot afford to send their animals to speciality clinics. People
      with pie-in-the-sky dreams like yours will force the farmers to euthanize
      rather than spend the farm on saving them. Wake up and smell the coffee.

  7. I agree with the commentor before me-about the female vet who works in Pol’s practice-she shocked me with her insensitivity toward the poor pregnant cow. Thank goodness she isn’t a human physician. Dr. Pol is Dutch and has an old world approach to his treatment of animals. I think he loves his work and the critters he treats but doesn’t treat them as gentle as one would a human patient….

  8. He is Old School ..He does his best ..He dont Rob People ..Its Not always Pretty ..But in most Cases The Animals or Pets Survive ..And the only reason they Survive is because ..Dr Poll …H Has keep his Pricing down ..And because of that alot of Animals live that might have otherwise have been Euthanized..He saved a Dogs live for 300 bucks and was dragged thought the mud for it

  9. Dr Pol and his office sure seem wonderful to this 70 yr old who has lived with large animals and a not unlimited budget for 65 yrs. He offers the down to earth animal (not human) medical care which works for me! His wisdom iand experience are amazing. Well meaning less experienced vets have killed many animals of mine over the years. Bravo Dr Pol and affiliated vets. Wish you were closer to our home in TX! Thanks for doing what you do and being available 24/7.

  10. Dr. Pol seems to do a lot of limb amputations. Rarely have I seen him try to save an animal’s limb. In most cases he decides to amputate. He also seems to often opt to remove an eye rather than try to save it.

    This pattern was what I’ve observed after watching many episodes of Dr. Pol’s reality TV show.

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