Nm Bd. of Veterinary Medicine v. Riegger, 25,610.

• Decision Date: 20 April 2006
• Docket Number: No. 25,610.,25,610.
• Citation: 2006 NMCA 069,137 P.3d 619
• Parties: NEW MEXICO BOARD OF VETERINARY MEDICINE, Appellee-Petitioner, v. Michael H. RIEGGER, D.V.M., Appellant-Respondent.
• Court: Court of Appeals of New Mexico

137 P.3d 619

2006 NMCA 069

NEW MEXICO BOARD OF VETERINARY MEDICINE, Appellee-Petitioner, v. Michael H. RIEGGER, D.V.M., Appellant-Respondent.

No. 25,610.

Court of Appeals of New Mexico.

April 20, 2006.

Certiorari Granted, No. 29,790, June 14, 2006.

Patricia A. Madrid, Attorney General, Jerome Marshak, Assistant Attorney General, Santa Fe, NM, for Petitioner.

Bannerman & Williams, P.A., Charlotte Lamont, Albuquerque, NM, for Respondent.

OPINION

KENNEDY, Judge.

{1} We affirm the district court, holding that the Board of Veterinary Medicine (the Board) cannot sanction its licensees for acts of ordinary negligence arising out of a single episode of care under NMSA 1978, § 61-14-13(A)(5) (1999). We reverse the district court's disallowances of the costs of this administrative action. We hold that NMSA 1978, § 61-1-4(G) (2003), which states that licensees must generally bear all costs of the disciplinary proceedings against them, is not limited by the terms of Rule 1-054(D) NMRA and that the legislature did not intend for Rule 1-054(D) to be read into Section 61-1-4(G). Issue (B)(3) is the district court's disallowance of the Board members' per diem and mileage as a cost that may be assessed against a disciplined licensee. On this issue, the panel is divided. The author's opinion on this issue represents a dissenting view. Judge Pickard's opinion, following the main opinion, represents the majority opinion on this issue. We therefore remand to the district court for a hearing to determine the proper measure of the other costs to be assessed in this case.

FACTS AND BACKGROUND

{2} Riegger is a veterinarian. This case concerns the disciplinary proceeding brought against him following his treatment of a horse named Eagle.

{3} Eagle's owner hired Riegger to perform follow-up care after Eagle had at least two surgeries at Colorado State University. After Eagle experienced more problems, Riegger recommended surgery. Riegger performed the surgery on October 1, 1999. Following surgery, Eagle was unable to stand and was suffering. Eagle was euthanized at approximately 8:00 a.m. the following morning.

{4} Eagle's owner complained to the Board that Riegger's treatment of Eagle was malpractice and cruelty. A hearing was held before a hearing officer pursuant to the Uniform Licensing Act (ULA), NMSA 1978, §§ 61-1-1 to -33 (1957, as amended through 2003), and the Veterinary Practice Act (VPA), NMSA 1978, §§ 61-14-1 to -20 (1967, as amended through 2005).

{5} Following the hearing, the Board considered Riegger's case. See § 61-1-13(A) ("After a hearing has been completed, the members of the [B]oard shall proceed to consider the case[.]"). It disagreed with the hearing officer's determinations in several respects. The hearing officer had found the Board could not discipline a licensee for acts of ordinary negligence under Section 61-14-13(A)(5) of the VPA. The Board disagreed, determining that it had the statutory authority to discipline Riegger for acts of ordinary negligence.

{6} While agreeing with the hearing officer that Riegger had committed a negligent act during surgery and grossly negligent and cruel acts following surgery, the Board found fault with several of the hearing officer's findings. Contrary to the hearing officer's findings, the Board found that Riegger had committed a number of preoperative negligent acts and that one of those acts was also grossly negligent. The Board also found that one post-operative act was grossly negligent where the hearing officer had found otherwise. In addition to ordering probation and continuing education, the Board ordered Riegger to pay the costs of the disciplinary proceeding in the amount of $22,021.83.

{7} Pursuant to Rule 1-074 NMRA, Riegger appealed to the district court. The court found that the Board was incorrect in interpreting Section 61-14-13(A)(5) of the VPA as authorizing discipline against a licensee for acts of ordinary negligence. It concluded that Riegger should not be sanctioned for acts of ordinary negligence. The district court then remanded for the Board to redetermine sanctions in light of its memorandum opinion, directing the Board to file an itemized cost bill in accordance with LR 2-302 NMRA.

{8} After the Board entered an amended decision with revised sanctions and costs in the amount of $22,021.83, Riegger again appealed to the district court. The district court entered an order allowing costs of only $1,669.11. Following the Board's motion for reconsideration, the district court allowed an additional $253.95 in costs that Riegger had conceded. In all other respects, it denied the Board's motion to reconsider.

{9} In formulating its ruling, the district court found that the term "costs" in Section 61-1-4(G) of the ULA should be construed to mean only the costs anticipated by Rule 1-054(D). It relied upon several out-of-state cases for this position. The district court also articulated additional reasons for rejecting certain costs. It reasoned that assessing the cost of the hearing officer would chill the licensee from defending against the charges. It also found that the Board members' per diem and mileage were provided for in another statute and that assessing the cost of the hearing room was contrary to the accessability and smooth functioning of the judiciary. The district court's final order incorporated its earlier memorandum opinions and allowed costs of $1,923.06. The Board filed a petition for certiorari which this Court granted.

II. DISCUSSION

A. Liability for Ordinary Negligent Acts Committed During a Single Episode of Treatment

{10} The ULA sets out the procedures for a professional board to take action against a licensee. Section 61-14-13(A)(5) of the VPA authorizes the Board to discipline a licensee upon finding that the licensee "is guilty of dishonesty, incompetence, gross negligence or other malpractice in the practice of veterinary medicine." The Board claims that the definition of "other malpractice" includes Riegger's acts of ordinary negligence. This issue is a question of statutory interpretation that does not implicate agency expertise; our review is de novo. See Hovet v. Allstate Ins. Co., 2004-NMSC-010, ¶ 10, 135 N.M. 397, 89 P.3d 69 (holding that the appellate courts apply a de novo standard of review to issues of statutory interpretation); Rio Grande Chapter of the Sierra Club v. N.M. Mining Comm'n, 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806 (stating that our Supreme Court would not defer to an agency's interpretation of a statute because this was a question of law that the Court reviews de novo); Miss. Potash, Inc. v. Lemon, 2003-NMCA-014, ¶ 7, 133 N.M. 128, 61 P.3d 837 (observing that "[w]e may substitute our interpretation of the law for that of the agency because it is a court's role to interpret the law"). Section 61-14-13(A)(5), as written, allows sanctioning for "gross negligence." As discussed later in this opinion, we hold that this standard alone defines the applicable standard of negligence upon which the Board can base its discipline of licensees; the phrase "other malpractice" in Section 61-14-13(A)(5) should not be interpreted to include a single episode of ordinary negligence. We specifically decline to address whether repeated acts of ordinary negligence over time may be disciplined as "other malpractice." We limit the scope of this opinion to a veterinarian's acts of ordinary negligence committed during a single episode of treatment.

{11} To interpret the phrase "other malpractice" as meaning a single episode of "negligence" would make the term "gross" mere surplusage. Reading a standard sanctioning a single act of ordinary negligence into the statute would expand the sanctionable behavior to allow discipline for all forms of negligence, including "gross negligence." The existing standard of "gross negligence" would thus be superfluous, and we will not interpret the statute in such a manner. See Regents of the Univ. of N.M. v. N.M. Fed'n of Teachers, 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236 ("Statutes must be construed so that no part of the statute is rendered surplusage or superfluous." (internal quotation marks and citation omitted)); Slygh v. RMCI, Inc., 120 N.M. 358, 359, 901 P.2d 776, 777 (Ct.App.1995) ("A statute must be construed so that no word, clause, sentence, provision or part is rendered surplusage or superfluous."). If the legislature had intended to authorize sanctions for ordinary negligence, it could easily have drafted the statute to specifically include "negligence" without qualifying that term by adding of the word "gross." Cf. Colo.Rev.Stat. § 12-64-111(1)(k) (2004) (allowing veterinarians to be disciplined for "[i]ncompetence, negligence, or other malpractice"). Therefore, it would be unreasonable for the legislature to have intended the phrase "other malpractice" to encompass negligent acts committed during a single episode of treatment.

{12} The Board cites to the Medical Malpractice Act, NMSA 1978, §§ 41-5-1 to -29 (1976, as amended through 1997), and Duncan v. Campbell, 1997-NMCA-028, 123 N.M. 181, 936 P.2d 863, to support its claim that malpractice of a licensee should be interpreted as ordinary negligence. This argument is unpersuasive. Both the Medical Malpractice Act and this Court's decision in Duncan address the issue of when a practitioner may be civilly liable to a patient or client for malpractice and the possible limitations on this liability. See §§ 41-5-5, -6 (limiting the recovery available against qualified health care providers in civil malpractice actions); Duncan, 1997-NMCA-028, ¶¶ 1, 6, 11, 123 N.M. 181, 936 P.2d 863 (addressing when the plaintiff's legal malpractice claim accrued for purposes of the statute of limitations). Duncan does not discuss the meaning of "other malpractice" in the context of a standard for discipline of a licensee. See Seeds v. Lucero, 2005-NMCA-067, ¶ 19, 137 N.M. 589, 113 P.3d 859 (noting that a case was...