Hammad v. Bureau of Prof'l & Occupational Affairs

• Decision Date: 10 September 2015
• Docket Number: No. 2421 C.D. 2014,2421 C.D. 2014
• Citation: 124 A.3d 374
• Parties: Mohamed Ali HAMMAD, V.M.D., Petitioner v. BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF VETERINARY MEDICINE, Respondent.
• Court: Pennsylvania Commonwealth Court

124 A.3d 374

Mohamed Ali HAMMAD, V.M.D., Petitioner

v.BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE BOARD OF VETERINARY MEDICINE, Respondent.

No. 2421 C.D. 2014

Commonwealth Court of Pennsylvania.

Submitted on Briefs Aug. 14, 2015.

Decided Sept. 10, 2015.

Mohamed Ali Hammad, pro se.

Teresa Lazo, Assistant Counsel, Harrisburg, for respondent.

Opinion

OPINION BY Senior Judge JAMES GARDNER COLINS.

Mohamed Ali Hammad, V.M.D., (Petitioner), pro se,petitions for review of the May 29, 2013 final order of the State Board of Veterinary Medicine (Board) adopting the proposed adjudication and order of the Hearing Examiner as the final adjudication and order of the Board. In adopting the Hearing Examiner's proposed order, the Board assessed a civil penalty of $5,000, and suspended Petitioner's veterinary license for two (2) years, stayed in favor of six (6) months active suspension and eighteen (18) months of probation. Before this Court, Petitioner argues that he was denied an opportunity to present his case before the Board. We conclude that the Board followed proper procedure in adjudicating this matter and that Petitioner was afforded due process of law. Therefore, we affirm the order of the Board.

On June 29, 2012, a prosecuting attorney for the Department of State (Department) issued an eight (8) count order to show cause alleging that Petitioner had violated the Veterinary Medicine Practice Act¹(Act) and regulations promulgated by the Board pursuant to the Act. (Order to Show Cause, Counts ¶¶ 1–8, Reproduced Record (R.R.) at 7a–18a.) The order to show cause alleged that Petitioner violated the recordkeeping²and professional conduct regulations³promulgated by the Board, and was subject to discipline under Section 21(1) of the Act for “[w]ilful or repeated violations of any provisions of this act or any of the rules and regulations of the [B]oard”; under Section 21(11) of the Act for “[i]ncompetence, gross negligence or other malpractice, or the departure from, or failure to conform to, the standards of acceptable and prevailing veterinary medical practice, in which case actual injury need not be established”; and under Section 21(12) of the Act for “[e]ngaging in practices in connection with the practice of veterinary medicine which are in violation of the standards of professional conduct as defined herein or prescribed by the rules of the board.” 63 P.S. § 485.21(1), (11), (12); 49 Pa.Code §§ 31.22(1), (3), (9)and 31.21(8)(e).

On July 19, 2012, Petitioner filed an answer denying each of the allegations made in the order to show cause and requesting a copy of the complaint made against him,⁴as well as a hearing and the presence of the complainant at the hearing. (Respondent's Answer to Order to Show Cause, R.R. at 27a.) Petitioner also filed a motion to dismiss on July 19, 2012 in which he stated that the allegations were without foundation, that the prosecuting attorney for the Department ignored his February 20, 2012 letter to the Board explaining his good faith error and the steps he has taken to bring his practice into compliance with the Board's regulations regarding use of unexpired medications, and that the prosecuting attorney for the Department was acting out of prejudice because Petitioner is Muslim. (Respondent's Motion to Dismiss, R.R. at 32a; Letter to Investigator Larry Clinkscale, R.R. at 28a.).

On August 6, 2012, the Board issued an order denying Petitioner's motion to dismiss and delegating the matter to a Hearing Examiner to conduct a formal hearing and to issue a proposed adjudication and order. (Board Order 08/06/12, R.R. at 41a.) On August 13, 2012, a Notice of Hearing for October 22, 2012 was mailed to Petitioner. (Notice, R.R. at 43a.) On August 30, 2012, the Department filed a motion for a continuance because its expert witness was unavailable to testify on October 22, 2012. (Motion to Continue, R.R. at 45a.) On September 14, 2012, the Hearing Examiner granted the Department's request for a continuance. (Order Continuing Hearing, R.R. at 51a.) On September 17, 2012, Petitioner filed a Motion to Deny the Continuance and Petitioner mailed a letter to the Hearing Examiner initially assigned to this matter stating that he would not be attending the hearing. (Letter to Hearing Examiner, R.R. at 44a.) On October 11, 2012, a Notice of Rescheduled Hearing for November 19, 2012 was mailed to Petitioner. (Rescheduled Notice, R.R. at 50a.).

The hearing was held before the Hearing Examiner on November 19, 2012. (Hearing Transcript (H.T.), Supplemental Reproduced Record (S.R.R.) at 31b–74b.) The Department presented the testimony of Brenda Crosby, owner of a female light brown Yorkshire Terrier known as “Cinnamon” for which Petitioner provided veterinary care; Larry Clinkscale, investigator for the Department, Bureau of Enforcement and Investigation; and, as an expert in veterinary care, Alan A. Kirkmayer, D.V.M. (H.T. at 9, 25, 32, S.R.R. at 36b, 52b, 59b.) The Department also admitted into evidence, inter alia,the health and vaccination

records of Cinnamon that Petitioner produced during the Department's investigation, a hand-written letter on Petitioner's stationary addressed “to whom it may concern” and signed by Petitioner that stated heartworm medicine could still be effective up to 6 months after its expiration date, and an expert report prepared by Dr. Kirkmayer. (H.T. at 32, 45, Exhibits F, G & K, S.R.R. at 59b, 72b, 78b, 80b–83b, 87b.) Petitioner did not appear for or participate in the hearing before the Hearing Examiner.

On February 28, 2013, the Hearing Examiner issued a proposed adjudication and order with findings of facts, conclusions of law, and a lengthy discussion recommending that Petitioner be subject to disciplinary action because each allegation in the order to show cause was proven by substantial evidence. (Hearing Examiner Proposed Adjudication and Order (A & O), S.R.R. at 4b–28b.) On March 7, 2013, the Board issued a Notice of Intent to Review the proposed adjudication and order and, on March 16, 2013, Petitioner filed exceptions to the proposed adjudication and order and requested a hearing before the Board. (Notice of Intent to Review, R.R. at 60a; Respondent Brief, R.R. at 62a–63a; Letter Request for Hearing, R.R. at 64a.) The Board issued its final order adopting the proposed adjudication and order on May 29, 2013, including, inter alia,the following findings of fact:

5. [Petitioner] examined a dog, Cinnamon, a female light brown Yorkshire terrier owned by Brenda Crosby, on an initial visit on March 16, 2011. (N.T. 11; Exhibit G)

6. Ms. Crosby brought Cinnamon to [Petitioner] for veterinary care for a possible ear infection. (N.T. 10–11)

7. [Petitioner's] veterinary medical records for Cinnamon for March 16, 2011 do not contain a history, presenting problem or findings on physical examination, including weight or vital signs. (Exhibit G)

8. [Petitioner's] veterinary medical records indicate “ear cleaning, ear ointment” for Cinnamon's March 16, 2011 appointment. (Exhibit G)

9. [Petitioner's] March 16, 2011 veterinary medical records for Cinnamon do not contain the following:

a. A description of the underlying medical problem, which ear was being treated, history of the problem, suspected or known cause of the problem, the ointment used and the reason for the administration of Cephalexin

;

b. An evaluation of the patient, including the presenting problem, physical findings and treatment plan;

c. The dosage and instructions for the use of Cephalexin

;

d. The name of the ear ointment, instructions for use and dosage;

e. The signature or initials identifying the treating veterinarian;

f. A vaccination

history;

g. The previous medical history; and

h. The diagnosis.

(N.T. 37–40; Exhibits G and K)

10. On May 6, 2011, Ms. Crosby brought Cinnamon to [Petitioner] for her annual vaccinations

. (N.T. 14; Exhibit G)

11. [Petitioner's] veterinary medical records for the May 6, 2011 appointment state that [Petitioner] administered DHLLP, rabies and Lyme disease

vaccinations, and dispensed “H–W tablet 28” and “Rymadyl^[5]1/4 BID.” (Exhibit G)

12. [Petitioner's] May 6, 2011 veterinary medical records for Cinnamon do not contain the following:

a) A description of the underlying medical problem for which Cinnamon was being seen and the reason for dispensing Rimadyl;

b) An evaluation of the patient, including the presenting problem, physical findings and treatment plan;

c) The dosage and instructions for the use of Rimadyl;

d) The name and brand of the heartworm medication, strength, or instructions for use;

e) The duration of action of the vaccinations

administered, when booster vaccinationsare needed, and the manufacturer and/or lot number of the vaccines;

f) The signature or initials identifying the treating veterinarian;

g) A vaccination

history;

h) A previous medical history; and

i) The diagnosis.

(N.T. 40–41; Exhibits G and K)

13. A blood test is required prior to prescribing and dispensing heartworm medication to a dog to ensure that the dog is not infected with the parasite. (N.T. 40–41; Exhibit K)

14. [Petitioner] failed to perform a blood test or to ensure that a blood test was performed prior to prescribing and dispensing heartworm medication to Cinnamon. (N.T. 40–41; Exhibits G and K)

15. Rimadyl is a non-steroidal anti-inflammatory drug (NSAID). (N.T. 41; Exhibit K)

16. Blood work is required prior to prescribing Rimadyl to ensure that the dog is healthy before administering the medication. (N.T. 41; Exhibit K)

17. Rimadyl can affect the bone marrow, liver, and kidneys of a dog, and it is standard of care to do follow-up blood work every six months if a dog is prescribed Rimadyl on a daily basis to make sure there are no adverse effects. (N.T. 41; Exhibit K).

18. [Petitioner's] veterinary medical records do not show any blood work prior to dispensing Rimadyl to Cinnamon, and fail to include a recommendation for follow-up blood work for Cinnamon. (N.T. 41; Exhibits G and K)

19. The May 16, 2011 entry in [Petitioner's]

...