In re Bloomfield

• Decision Date: 11 July 2014
• Docket Number: No. 2013–192,2013–192
• Citation: 166 N.H. 475,98 A.3d 483
• Parties: In the MATTER OF R. Eric BLOOMFIELD, DVM (New Hampshire Board of Veterinary Medicine)
• Court: New Hampshire Supreme Court

166 N.H. 475

98 A.3d 483

In the MATTER OF R. Eric BLOOMFIELD, DVM (New Hampshire Board of Veterinary Medicine)

No. 2013–192

Supreme Court of New Hampshire.

Argued: February 20, 2014

Opinion Issued: July 11, 2014

Steiner Law Office, PLLC, of Concord (R. James Steiner on the brief and orally), for the respondent.

Joseph A. Foster, attorney general (Francis C. Fredericks, Jr., attorney, on the brief and orally), for the New Hampshire Board of Veterinary Medicine.

BASSETT, J.

The respondent, R. Eric Bloomfield, DVM, appeals a decision of the New Hampshire Board of Veterinary Medicine (Board) in which it reprimanded the respondent based upon its findings that he failed to do a physical examination of a puppy prior to demonstrating a restraint technique, that his restraint of the puppy was excessive, and that he failed to respect the opinion of the puppy's owners. We affirm.

The Board found or the record establishes the following pertinent facts. On August 6, 2007, a couple took their male five-month old Shih Tzu puppy, Toby, and two other puppies to see the respondent, a licensed veterinarian, for routine vaccination

and de-worming. The respondent asked the couple whether they had any concerns about Toby's behavior. They responded that they did not. The respondent then inquired as to which puppy was male, picked Toby up, and administered an oral de-wormer. The respondent asked whether they had experienced any dominance issues with Toby. The couple answered that they had not.

The respondent determined that Toby was "dominant" and proceeded to demonstrate a dominance-submission technique, which included picking Toby up by the scruff of his neck and pinching his snout. Toby then began to urinate. The respondent restrained Toby on the examination table. Toby defecated, struggled briefly, lay still, and then began bleeding from his mouth. Toby died later that day. A necropsy revealed the cause of death to be a non-cardiogenic pulmonary edema

(NPE).

In May 2010, the couple filed a formal complaint against the respondent regarding his treatment of Toby. Prior to the hearing, the respondent filed a motion to dismiss, arguing, among other things, that there were no grounds to support the allegations of improper treatment because, at the time of the incident, it was "not known sufficiently in literature" that Shih Tzus had sensitivity to NPE based upon minimal treatment such as muzzling. The Board denied the motion.

After a one-day hearing, the Board found that the respondent did not engage in misconduct as defined by RSA 332–B:14, II(d) (2011) (defining misconduct as "[u]nfitness or incompetency to practice the profession") and that his actions did not cause the death of Toby. Nonetheless, the Board found that the respondent "failed to respect the opinion of the owners and proceeded to demonstrate dominance submission techniques." In addition, it found that "there is no evidence of an exam prior to the demonstration." Finally, it found that "the restraint was excessive, especially given the breed." Therefore, the Board concluded that the respondent's behavior constituted misconduct under RSA 332–B:14, II(c) (2011) (defining misconduct as "unprofessional conduct"), and it reprimanded him.

The respondent moved for reconsideration, arguing that the Board had failed to adopt rules defining "unprofessional conduct," as used in RSA 332–B:14, II(c), and, therefore, the statute was impermissibly vague and violated his right to due process. He also argued that, because the Board did not require expert testimony on the standard of care, its "decision must be vacated for failing to have sufficient evidence to sustain the finding imposed." Finally, he contended that the Board overlooked or misapprehended facts that were inconsistent with its ultimate decision. The hearing counsel objected to the motion, arguing that New Hampshire Administrative Rules, Part Vet 501, which requires veterinarians to comply with the Principles of Veterinary Medical Ethics of the American Veterinary Medical Association, clearly articulated the standards underlying the Board's decision. The Board denied the motion. This appeal followed.

On appeal, the respondent argues that the evidence does not support the Board's finding that he failed to do a physical examination of the puppy prior to demonstrating a restraint technique, and that his restraint of the puppy "was excessive, especially given the breed." He also argues that RSA 332–B:14, II(c) is "impermissibly vague," and, therefore, violates his procedural due process rights. Finally, he contends that the Board erred by not requiring expert testimony on the standard of care. We address these arguments in turn.

"RSA chapter 541 governs our review of board decisions." Appeal of Huston, 150 N.H. 410, 411, 840 A.2d 773 (2003). Under RSA 541:13 (2007), "we will not set aside the board's order except for errors of law, unless we are satisfied, by a clear preponderance of the evidence, that it is unjust or unreasonable." Id. "The board's findings of fact are presumed prima facie lawful and reasonable." Id. In reviewing the Board's findings, our task is not to determine whether we would have found differently or to reweigh the evidence, but rather, to determine whether the findings are supported by competent evidence in the record. See Appeal of Phillips, 165 N.H. 226, 235, 75 A.3d 1083 (2013). We review the board's rulings on issues of law de novo. Appeal of Huston, 150 N.H. at 411, 840 A.2d 773.

I. Factual Findings

The respondent first argues that the evidence does not support the Board's finding that "the restraint was excessive, especially given the breed" because: (1) Shih Tzus' particular susceptibility to restraint was not generally understood in veterinary practice in 2007; and (2) the sole evidence that the respondent's actions were excessive was the alleged link between his restraint of Toby and Toby's death—a causal relationship that the Board specifically rejected. The respondent also contends that the veterinary record clearly demonstrates that he performed a preliminary physical examination of the puppy prior to the demonstration.

We conclude that the Board had evidence before it that the respondent's restraint "was excessive, especially given the breed." The respondent testified that he continued to perform the restraint as Toby urinated and defecated. Additionally, in response to a question as to whether the respondent's restraint was excessive, the investigator, a veterinarian whom the Board assigned to investigate the case, stated, "Well, yeah ... [t]o ... restrain a puppy to the point where it's urinating and defecating and continuing to restrain it through the whole episode, I would consider excessive for any puppy." The Board also heard testimony elaborating on a 1995 article that was admitted into evidence, which referred to the tendency of bulldogs to develop airway obstruction

. Specifically, witnesses agreed that Shih Tzus, like bulldogs, have small nostrils, small tracheas, and redundant soft tissue, and, therefore, that "it doesn't take much to tip [Shih Tzus] over the edge in breathing issues."

There was also evidence that the respondent did not do a preliminary physical examination prior to the demonstration. The couple testified that the respondent gave Toby de-wormer medication and demonstrated the dominance-submission techniques without first examining or interacting with Toby. In contrast, the respondent testified that he did perform a physical examination. Whether the respondent performed an initial examination was an issue of credibility for the Board. "We will not disturb the board's credibility determinations on appeal. Weighing testimony and assessing its credibility are solely the province of the board." Appeal of Huston, 150 N.H. at 414, 840 A.2d 773. Accordingly, we defer to the Board's findings.

Therefore, we conclude that the respondent has not met his burden and that there was competent evidence to support the Board's findings that: (1) the respondent's restraint was "excessive, especially given the breed"; and (2) "there is no evidence of an exam prior to the demonstration." See Appeal of Phillips, 165 N.H. at 235, 75 A.3d 1083.

II. Notice and Due Process

The respondent next argues that RSA 332–B:14, II(c) violates his constitutional right to due process because the statute defines the "misconduct" necessary to support disciplinary proceedings "by simply restating the same term, noting it as ‘[a]ny unprofessional conduct.’ " He contends that no rules specify conduct that rises to the level of "unprofessional conduct," and, therefore, that the statute is unconstitutionally vague.

The Board responds that "unprofessional conduct" does not require further clarification, and that, in any event, the Board did adopt specific rules pertaining to such conduct. We agree with the Board.

We consider the respondent's argument under only the United States Constitution because he does not specifically invoke a provision of the New Hampshire Constitution in his brief. See In the Matter of Kurowski & Kurowski, 161 N.H. 578, 588, 20 A.3d 306 (2011). The Fourteenth Amendment's Due Process Clause "requires that statutes or regulations be sufficiently specific to provide fair notice of what they proscribe." Kittery Motorcycle, Inc. v. Rowe, 320 F.3d 42, 50 (1st Cir.2003) (quotation omitted). "Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis." Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988). "Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk." Id.

RSA 332–B:14, II(c) states:

II. Misconduct sufficient to support disciplinary proceedings under this section shall include:

...

(c) Any unprofessional conduct,

...