Lawendy v. Bd. of Veterinary Medicine, No. 27830.

• Court: Appellate Court of Connecticut
• Writing for the Court: Hennessy
• Citation: 109 Conn.App. 113,951 A.2d 13
• Parties: Sherif M. LAWENDY v. CONNECTICUT BOARD OF VETERINARY MEDICINE et al.
• Decision Date: 15 July 2008
• Docket Number: No. 27830.

951 A.2d 13 109 Conn.App. 113 Sherif M. LAWENDY
v.
CONNECTICUT BOARD OF VETERINARY MEDICINE et al. No. 27830. Appellate Court of Connecticut. Argued December 4, 2007. Decided July 15, 2008.

[951 A.2d 15]

Emily V. Melendez, assistant attorney general, with whom, on the brief, were Richard Blumenthal, attorney general, and Richard J. Lynch, assistant attorney general, for the appellants-appellees (defendants).

Laurel Fedor, for the appellee-appellant (plaintiff).

DiPENTIMA, HARPER and HENNESSY, Js.

HENNESSY, J.

109 Conn.App. 114

The defendants, the Connecticut board of veterinary medicine (board) and the department of public health (department), appeal from the judgment of the trial court reversing the board's finding of negligence on the part of the plaintiff, Sherif M. Lawendy, under General Statutes § 20-202(2).¹ The

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plaintiff cross appeals, claiming that the court improperly (1) failed to remand the case to the board after overturning one of its findings, (2) affirmed the board's finding that the department provided adequate notice for one of the charges against him, (3) affirmed the board's decision to admit sworn statements when the witness was not present for cross-examination, (4) affirmed the board's finding that the veterinary clinic where he practiced was not a hospital under General Statutes § 20-205 and (5) affirmed the board's finding that the plaintiff

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assisted in the unauthorized practice of veterinary medicine under § 20-202(8).

The following facts, found by the board, and procedural history are necessary for our resolution of these appeals. Prior to and during the incident giving rise to this litigation, the plaintiff held a Connecticut veterinary license. On September 30, 2004, the department presented the board with a statement of charges against the plaintiff that charged him with a violation of § 20-202(2) and (8). The plaintiff filed an answer to the charges on December 10, 2004. The board held an administrative hearing on February 9, 2005, at which the parties were represented by counsel. From about June, 2001, through about July, 2003, Elena Alvarez was not licensed to practice veterinary medicine in Connecticut. During this time, Alvarez was employed by the plaintiff, who allowed her to perform neutering surgeries on male shelter cats. The board found that the

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department met its burden of proof with respect to all charges, citing General Statutes § 20-197.² The board found that the plaintiff's claimed defense that he was allowed to supervise his staff in such procedures under the Connecticut board of veterinary medicine rules of practice was not valid because the regulations do "not authorize veterinarians to aid and abet the unlicensed practice of veterinary medicine." The board further rejected the plaintiff's claim that Alvarez was training under him to become licensed in Connecticut in his hospital, because no evidence was presented that Alvarez was involved in educational training, and the veterinary hospital was not an educational institution or laboratory.

The plaintiff appealed from the decision of the board on August 23, 2005, pursuant to General Statutes § 4-183(a). After the parties filed briefs, the court, Hon. Howard T. Owens, Jr., judge trial referee, issued its memorandum of decision on June 15, 2006. The court agreed with the plaintiff that the department failed to meet its burden to show negligence under § 20-202(2) because there was no evidence produced that any feral cat had been actually injured. In making this finding, the court cited RK Constructors, Inc. v. Fusco Corp., 231 Conn. 381, 384, 650 A.2d 153 (1994), for the proposition that "[t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." The court upheld

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the board's decision that the plaintiff violated § 20-202(8) and the board's rejection of his claim that he was providing educational training at his "hospital." The court further found that the plaintiff had sufficient notice of the charges against him and that admission of the prior disciplinary action against him as relevant evidence was reasonable. Last, the court found that it was unclear as to whether Alvarez was able to testify and that the plaintiff was not substantially prejudiced by the admission of Alvarez' signed affidavit.

The defendants filed their appeal on July 3, 2006, and the plaintiff filed his cross appeal July 12, 2006.

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General Statutes § 4-183(j)³ governs appellate review of agency decisions. "[W]e note that our review of an administrative appeal is limited. Our Supreme Court has established a firm standard that is appropriately deferential to agency decision making, yet goes beyond a mere judicial rubber stamping of an agency's decisions. ... Courts will not substitute their judgment for that of the agency where substantial evidence exists on the record to support the agency's decision, and where the record reflects that the agency followed appropriate procedures." (Citations omitted; internal quotation marks omitted.) Menillo v. Commission on

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Human Rights & Opportunities, 47 Conn.App. 325, 331, 703 A.2d 1180 (1997).

"Judicial review of the conclusions of law reached administratively is also limited. The court's ultimate duty is only to decide whether, in light of the evidence, the [agency] has acted unreasonably, arbitrarily, illegally, or in abuse of its discretion. ... Although the interpretation of statutes is ultimately a question of law ... it is the well established practice of this court to accord great deference to the construction given [a] statute by the agency charged with its enforcement. ... Conclusions of law reached by the administrative agency must stand if the court determines that they resulted from a correct application of the law to the facts found and could reasonably and logically follow from such facts." (Citations omitted; internal quotation marks omitted.) State Board of Labor Relations v. Freedom of Information Commission, 244 Conn. 487, 494, 709 A.2d 1129 (1998). Our task is to review the court's decision to determine whether it comports with the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., and whether "the court reviewing the administrative agency acted unreasonably, illegally, or in abuse of discretion." (Internal quotation marks omitted.) Ferreira v. Zoning Board of Appeals, 48 Conn.App. 599, 605, 712 A.2d 423 (1998).

I APPEAL BY BOARD AND DEPARTMENT

The defendants' appeal centers around the court's ruling that actual injury is necessary for a finding of negligence under § 20-202(2).⁴ In reaching its conclusion that the board had improperly disciplined the plaintiff for a violation of § 20-202(2), the court noted that

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"[t]he essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury"; (internal quotation marks omitted); and concluded that "the board erred in finding that the plaintiff was negligent ... absent a showing of actual injury." The defendants argue that § 20-202(2)

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does not require proof that an animal had sustained actual injury in order to discipline a veterinarian for "negligence towards animals and birds"; General Statutes § 20-202(2); and that it was improper to apply a common-law tort standard to an administrative disciplinary action. The plaintiff claims that the tort standard is the appropriate standard. We agree with the defendants.

We recognize that the common-law tort standard was appropriately set forth by the court, but it overlooks the implication in administrative case law that the tort standard is not necessarily applicable to this type of case.⁵ See Solomon v. Connecticut Medical Examining Board, 85 Conn.App. 854, 859 A.2d 932 (2004), cert. denied, 273 Conn. 906, 868 A.2d 748 (2005); Wasfi v. Dept. of Public Health, 60 Conn.App. 775, 761 A.2d 257 (2000), cert. denied, 255 Conn. 932, 767 A.2d 106 (2001). Solomon addresses negligence in the practice of medicine and the opinion focused on the "threat" that the physician's practice of medicine posed to the health and safety of persons. (Emphasis added.) Solomon v. Connecticut Medical Examining Board, supra, at 858, 867, 859 A.2d 932. Wasfi deals directly with the statute at issue here. Wasfi v. Dept. of Public Health, supra, at 779, 761 A.2d 257. In reaching its conclusion, this court was "[m]indful of the board's purpose of insuring proper veterinary care and the protection of the public health, considering the convenience and welfare of the animals being treated. ..."

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(Internal quotation marks omitted.) Id., at 793, 761 A.2d 257; General Statutes § 20-196. The veterinarian in Wasfi argued that his misconduct did not seriously injure the animal he had treated, but this court believed that the argument "miss[ed] the point" that the misconduct at issue could demonstrate "a risk that he would perform below the standard of care in the future." Wasfi v. Dept. of Public Health, supra, at 794, 761 A.2d 257. "It is rational to allow the...