Ohio Veterinary Med. Bd. v. Singh

• Decision Date: 27 March 1998
• Docket Number: No. C-970432,C-970432
• Citation: 127 Ohio App.3d 23,711 N.E.2d 740
• Parties: OHIO VETERINARY MEDICAL BOARD, Appellee, v. SINGH, Appellant. *
• Court: Ohio Court of Appeals

Page 23

127 Ohio App.3d 23

711 N.E.2d 740

OHIO VETERINARY MEDICAL BOARD, Appellee, v. SINGH, Appellant. ^*

No. C-970432.

Court of Appeals of Ohio,

First District, Hamilton County.

Decided March 27, 1998.

Betty D. Montgomery, Attorney General, Jody A. Flynn and Barbara Serve, Assistant Attorneys General, for appellee.

Gary B. Garson and Paul W. Flowers, Cleveland, for appellant.

PAINTER, Judge.

Defendant-appellant Harjinder Singh, a veterinarian, appeals from the trial court's order sustaining the Ohio Veterinary Medical Board's determination that he violated R.C. 4741.22(Y) by refusing to permit a veterinary board investigator to inspect his business premises during regular business hours. This saga unfolded after Dr. Singh castrated a cat named Buster in 1991.

After Singh neutered Buster, the cat experienced complications, such as swelling in the genital area and a blockage in the urinary tract, during the next few days. Buster was treated by another veterinarian and recovered from the complications. Buster's owner, Karen Bicknell, filed a complaint against Singh with the board almost a year after the complications developed. Approximately a year after Bicknell filed the complaint, the board notified Singh. Singh wrote to the board, expressing surprise and detailing the care and treatment he gave Buster. A few months later, the board subpoenaed Singh's records pertaining to Buster's treatment. Singh complied. The board then assigned the complaint to its sole investigator, James Thompson.

For well over a year, no action was taken on the complaint. In the meantime, Singh filed a federal lawsuit against the board, the individual board members, and Thompson, alleging discrimination and harassment based on his national origin. This lawsuit was based on matters other than what is at issue in this appeal. A little more than a month after the lawsuit was filed, on January 3, 1995, Thompson appeared at Singh's office. Thompson stated that he wanted to investigate the Bicknell complaint and to check whether Singh was complying with his thirty-day license suspension, which was imposed by the board for a matter unrelated to this appeal. On that day, Singh was not at his office, and Thompson confirmed that Singh was complying with his suspension.

Two days later, on January 5, 1995, Thompson again appeared at Singh's office to investigate the Bicknell complaint and to check whether Singh was complying with his suspension. Thompson was confused about the timing of Singh's reinstatement, because Singh's suspension had actually ended the day before, on January 4. So Singh was in a back room of his office when Thompson arrived.

When he entered Singh's office, Thompson demanded to speak with Singh and to see his files pertaining to the Bicknell complaint. Singh's wife and Dr. Sinah, another veterinarian in the office, told Thompson that Singh's attorney had advised him not to speak with Thompson or to provide him with the records. Thompson left the premises. Two weeks later, Singh received an undated letter from the board authorizing Thompson to investigate a complaint. On February 2, 1995, Thompson again went to Singh's office. Singh was not there, and his wife told Thompson that the records were at their lawyer's office.

The board then charged Singh with violating R.C. 4741.22(A) and (R) for failing to abide by rules governing the proper treatment of animals and for gross incompetence, and with departing from the minimum standards of care under Ohio Adm.Code 4741-1-03. Both of these charges grew out of the Bicknell complaint concerning Buster's surgery. Additionally, the board charged Singh with refusing to permit Thompson to inspect his business premises under R.C. 4741.22(Y).

After a hearing, the board-appointed hearing examiner concluded that Singh's use of dimethyl sulfoxide, more commonly known as "DMSO," fell below the minimum standards of care for veterinarians under R.C. 4741.22(A) and Ohio Adm.Code 4741-1-03(B). He held, though, that there was no evidence of gross incompetence under R.C. 4741.22(R) and dismissed that charge. The examiner further determined that Singh had refused to allow Thompson to inspect his business premises on January 5, 1995, in violation of R.C. 4741.22(Y). Singh filed objections to the examiner's report. The board adopted the examiner's report and recommended penalties: a sixty-day veterinary license suspension, a $500 fine, and costs of $1,086.70.

Singh appealed the board's order to the Hamilton County Court of Common Pleas. The trial court determined that the charges relating to Buster regarding violations of minimum standards of care, R.C. 4741.22(A) and Ohio Adm.Code 4741-1-03, were not supported by reliable, probative, and substantial evidence, and dismissed them. But the trial court upheld the board's finding that Singh had violated R.C. 4741.22(Y) by refusing to allow Thompson to inspect his business premises. The trial court then ordered the case back to the board for a recalculation of the appropriate discipline.

Singh now brings three assignments of error from the trial court's decision that he violated R.C. 4741.22(Y). The board, however, has not appealed the trial court's dismissal of the charges pertaining to Singh's alleged violations of the minimum standard of care for animals. In his first assignment, Singh contends that the trial court's decision upholding the board's finding of a violation of R.C. 4741.22(Y) was not supported by reliable, probative, and substantial evidence. We must disagree.

In examining the first assignment, we must first determine our standard of review. In an administrative appeal under R.C. 119.12, a trial court must determine whether the decision by the administrative board or agency was supported by reliable, probative, and substantial evidence in the record. ¹ The trial court must give due deference to the administrative resolution of evidentiary conflicts and must not substitute its judgment for that of the administrative board or agency. ²

In Pons v. Ohio State Med. Bd., the Ohio Supreme Court explained the appellate court's standard of review in an appeal from a medical board's order: "The appellate court's review is even more limited than that of the trial court. While it is incumbent on the trial court to examine the evidence, this is not a function of the appellate court. The appellate court is to determine only if the trial court has abused its discretion * * *." ³ We are uncertain why our standard of review is more limited than that of the trial court. The trial court has taken no new evidence and has merely looked at the record of the case--just as we do now. We can find no support for that position in R.C. 119.12. We can see no reason for the added deference to the trial court's decision in these instances. ⁴ We also note that the Ohio Supreme Court has stated that a different standard applies in unemployment compensation cases. ⁵ But we are forced to follow the Ohio Supreme Court's pronouncement in Pons and thus must review Singh's assignment under an abuse-of-discretion standard.

This abuse-of-discretion standard, however, applies only to factual issues. We review issues of law de novo. ⁶

Applying this standard to Singh's first assignment, we are constrained to hold that the trial court did not abuse its discretion by upholding the board's order pertaining to R.C. 4741.22(Y). From the facts in the record, it is clear that during his investigation, Thompson wanted only to check Buster's original records. Singh's main contention seems to be that an inspection of the business premises under R.C. 4741.22(Y) does not contemplate the inspection of a veterinarian's records--and therefore that Singh did not refuse to allow Thompson to inspect his business premises. Singh contends that the purpose of a business-premises inspection under R.C. 4741.22(Y) is to check the facility for safety, sanitary conditions, and compliance with other applicable standards, and not to examine records. In support of this, Singh points to R.C. 4741.03(D)(1), which allows the board to subpoena the records that it desires to examine. Because there is no Ohio case law germane to the present dispute for guidance, we would be inclined to agree with Singh but for R.C. 4741.03(D)(2), not mentioned by either party to this appeal.

R.C. 4741.03(D)(2) states that the board may "[e]xamine and inspect books, papers, public records, animal patient records, and other documentary evidence at the location where the books, papers, records, and other evidence are normally stored or maintained." Thus, under the dictates of this statute, the board had the absolute right to examine Buster's records at Singh's office pursuant to an investigation. Because the board had directed Thompson to "conduct an investigation and/or compliance inspection of [Singh's] facility relative to a complaint filed with this office," Thompson had the authority to inspect the records during his investigation of Singh's office.

Singh makes two further arguments. First, he asserts that Thompson did not provide him with proper notice of the investigation as required by R.C. 4741.26(A). We first must distinguish between an inspection and an investigation under R.C. Chapter 4741. We interpret R.C. 4741.26(A) to allow the board to conduct an inspection of a veterinarian's place of business during normal business hours after giving five days' written notice. However, under R.C. 4741.26(A), "[i]n conducting any investigation for a suspected violation of this chapter, the board or its authorized agent does not have to provide any prior written notice to the licensee, permit holder, or registrant as long as the board provides a written authorization for the investigation." This section further requires the board's investigator to provide a copy of the written authorization for an investigation to the subject of the investigation at the time it takes place.

The intent of the statute seems...