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.
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.
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.
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.