Boswell v. Iowa Bd. of Veterinary Medicine

• Decision Date: 20 November 1991
• Docket Number: No. 90-543,90-543
• Citation: 477 N.W.2d 366
• Parties: Bradley W. BOSWELL, Appellant, v. The IOWA BOARD OF VETERINARY MEDICINE, Appellee.
• Court: Iowa Supreme Court

Page 366

477 N.W.2d 366

Bradley W. BOSWELL, Appellant, v. The IOWA BOARD OF VETERINARY MEDICINE, Appellee.

No. 90-543.

Supreme Court of Iowa.

Nov. 20, 1991.

William Kutmus of Kutmus & Pennington, and Lylea Dodson Critelli of Nick Critelli Associates, P.C., Des Moines, for appellant.

Bonnie J. Campbell, Atty. Gen., and Lynette A.F. Donner, Asst. Atty. Gen., for appellee.

Considered by McGIVERIN, C.J., and LARSON, NEUMAN, SNELL, and ANDREASEN, JJ.

NEUMAN, Justice.

The Iowa Board of Veterinary Medicine (board) charged Dr. Bradley W. Boswell, a licensed veterinarian, with conduct falling below the standard of veterinary practice in this state. Following a hearing on the charges, Boswell's license was revoked and he was ordered to pay a civil penalty of $1000. He petitioned for judicial review and, following a limited remand to the agency, the decision was affirmed by the district court.

The matter is now before us on Boswell's appeal and the board's cross-appeal from the court's ruling. In support of reversal, Boswell challenges the sufficiency of the evidence to support the board's decision and procedural irregularities that allegedly denied him a fair hearing. For its cross-appeal, the board argues that despite the affirmance of its decision, the court demanded a higher standard of proof than required by the Iowa Administrative Procedure Act (IAPA). We affirm on the appeal and reverse on the cross-appeal but do not remand.

I. Scope of Review. Section 17A.19(8) of the IAPA governs judicial review of the actions of the Board of Veterinary Medicine. See Iowa Code § 169.14(8) (1989) (appeal provisions of Veterinary Practice Act). On appeal, our sole task is to correct legal error, if any, infecting the agency's decision. Klein v. Department of Revenue & Fin., 451 N.W.2d 837, 839 (Iowa 1990); see Iowa Code § 17A.19(8) (listing legal standards applicable to agency action). Our review of the agency's factual findings is strictly circumscribed. Those findings are binding upon us so long as they are supported by substantial evidence in the record made before the agency. Maschino v. Geo. A. Hormel & Co., 372 N.W.2d 256, 258 (Iowa 1985).

II. Background Facts and Proceedings. Boswell has been licensed to practice veterinary medicine in Iowa since 1981. In 1984 he stipulated to a 60-day suspension of his license for authorizing a nonveterinarian to draw blood samples in violation of federal regulations. Many of the charges in the present case similarly related to Boswell's alleged failure to properly supervise employees and others in the discharge of statutorily defined veterinary practices. He was also accused of falsifying test records through the deliberate or negligent intermixing of blood samples; violating FDA regulations regarding use of illegal animal drugs; receiving and repackaging bulk animal drugs in violation of FDA standards; extending medications with the use of water instead of approved diluents; and overcharging clients for animal feed.

In accordance with Iowa Code section 169.14(3), the matter was tried to a panel of two veterinarians and one layperson, all of whom are members of the board. An administrative law judge (ALJ) presided over the hearing. During the hearing, the administrative secretary of the board, Walter D. Felker, D.V.M., sat with the panel members. This latter circumstance forms the basis for one of appellant's charges of procedural irregularity.

The case against Boswell rested largely on the testimony of two former employees, Shelley Quandt and Sue Rooda. On the issue of false test reports, both of them testified regarding an incident occurring on Rooda's first day at the clinic. While performing anaplasmosis ¹ testing on four cattle, the women found that the samples had hemolyzed and could not be used. They testified that Boswell instructed Quandt to "pour over" sufficient blood from samples taken from another client's herd to make up for the frozen samples. On another occasion, when brucellosis ² testing of eleven sows yielded only ten adequate samples of blood, Boswell reportedly told Rooda to "fudge a little" by borrowing serum from one of the other test tubes. Boswell gave these directions from his truck phone. Another veterinarian who was accompanying Boswell at the time overheard the conversation and corroborated Rooda's statement. Later that same month, when brucellosis testing of forty-two sows unexpectedly yielded only forty samples of blood, Boswell reportedly directed a veterinary technician, Becky Roepke, to divide the available samples to make forty-two. In each instance, Boswell certified to state and federal laboratories that the specimens were accurate.

Evidence of Boswell's alleged misuse of animal drugs rested on the testimony of FDA inspectors and Boswell's employees. This testimony revealed that chloramphenicol, a drug banned by the FDA in 1986, was routinely used by Boswell to treat small hogs for scours. ³ Quandt reported that when an FDA investigator visited the clinic in 1987, Boswell advised her to remove the drug from the clinic and place it in a nearby horse barn. Thereafter clinic staff secured the drug when needed from the barn. On a subsequent visit by an investigator Boswell denied having or using the drug, but on a third trip to his clinic an investigator discovered twenty-six bottles of chloramphenicol in the horse barn.

Evidence also revealed that Boswell purchased bulk drugs approved by the FDA and then combined them in mixtures and dosages without applying for new animal drug permits. As will be explained further in this opinion, this practice by veterinarians is not without controversy. Boswell felt he was in compliance with pertinent FDA regulations, but the investigators--and ultimately the hearing panel--thought otherwise.

Two veterinarian technicians testified that Boswell extended some vaccines and a cattle wormer, Ivermectin, with water. Expert testimony was given to show that such practice does not conform to the minimum standard of prevailing veterinary practice in this state.

Finally, Boswell's employees cited billing practices in which the number of tons of feed sold was overstated at Boswell's direction thereby resulting in excessive charges to clients. Employees also testified that they were regularly required to perform unsupervised surgical procedures such as neutering and declawing cats and anesthetizing dogs and cats, without Boswell's direct supervision.

By way of defense to this evidence, Boswell conceded that substituting and intermixing of blood samples, falsely certifying blood specimens, authorizing surgical procedures by unlicensed persons, and dishonesty with respect to billing would--if proven--violate state and federal statutes and administrative rules and constitute misconduct falling below veterinary medicine standards. He argued strenuously, however, that these acts did not occur. Regarding the other matters alleged, he argued that some fell within a "gray area" subject to honest divergence in professional opinion, and others were so minor as to not warrant discipline.

Following hearing, the panel found Boswell's acts violated the following state and federal statutes and administrative regulations: Iowa Code § 169.13(1), (3), (5), and (7) (prohibiting veterinarians from deceptive practices, violating state or federal laws regulating veterinary medicine, knowingly procuring or advising a person to unlawfully practice veterinary medicine, willfully departing from the minimal standard of acceptable and prevailing practice of veterinary medicine); 9 C.F.R. § 161.3(b), (d), (h), and (j) (standards for the withdrawal and testing of animal blood samples); 21 U.S.C. § 351(a)(5) (prohibiting use or sale of chloramphenicol after January 23, 1986); 21 U.S.C. § 352(a), (e), (f), and (i); 21 U.S.C. § 331(g), (p); 21 U.S.C. § 360(b); and 21 C.F.R. § 510.6(c) (pertaining generally to the sale or repackaging of bulk animal drugs); 811 Iowa Admin.Code 12.2 (regulating extra-label use of veterinary drugs and vaccines); and 811 Iowa Admin.Code 8.5(2)(a) and 8.7 (prohibiting unsupervised surgical procedures by a veterinary assistant and charging veterinarian with ethical and legal responsibility for actions of assistants). On judicial review, these findings of fact and conclusions of law were upheld by the district court.

III. Appellate Issues.

A. Burden of proof. From the outset the parties have debated the fundamental matter raised by the board's cross-appeal: the appropriate standard of proof in an action to discipline a veterinarian. Over the objection of Boswell's counsel, the hearing panel was advised to render its disciplinary decision based on the "preponderance of evidence" standard. When Boswell subsequently petitioned for judicial review, he successfully urged the district court to remand the matter to the agency for reconsideration under a standard of "clear and convincing evidence." The panel filed a supplemental decision holding that its earlier findings were justified even under the higher standard of proof. The question is whether the court erred when it required that the evidence before the board meet this higher standard.

Since the district court's ruling in this matter, we have addressed the same issue with respect to disciplinary actions against medical doctors. In Eaves v. Board of Medical Examiners, 467 N.W.2d 234 (Iowa 1991), we observed that at common law such actions required proof only by a preponderance of the evidence, and such standard is sufficient to pass constitutional muster. Id. at 237 (citing State v. Brown, 218 Iowa 166, 170, 253 N.W. 836, 838 (1934), and In re Polk, 90 N.J. 550, 567-69, 449 A.2d 7, 16 (1982)). Thus we held the correct standard in medical disciplinary cases to be proof by a preponderance of the evidence. Id.

We are not persuaded by appellant's plea that we establish a more stringent standard for the suspension or revocation of veterinarians' licenses. Both...