Temple v. Bureau of Prof'l & Occupational Affairs
|05 August 2022
|693 C.D. 2021
|James W. Temple, Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Veterinary Medicine, Respondent
|Commonwealth Court of Pennsylvania
James W. Temple, DVM (Petitioner), petitions for review of the May 26, 2021 order of the State Board of Veterinary Medicine (Board), which found that Petitioner failed to conform to the standards of acceptable and prevailing veterinary medical practice pursuant to Section 21(11) of the Veterinary Medicine Practice Act (Act).Petitioner contends that the expert testimony presented against him violated his right to due process by creating the appearance that the Board intermingled prosecutorial and adjudicatory functions, and that substantial competent evidence did not support the Board's findings of fact because that same expert testimony was incompetent. After review, we affirm in part vacate in part, and remand.
This proceeding stems from Petitioner's practice as a veterinarian at Sunbury Animal Hospital (the Hospital) in Sunbury, Pennsylvania. On February 18, 2016, Donna Kurtz (Owner) brought her dog, Tiki, to the Hospital for an emergency visit, where Petitioner performed an examination. Reproduced Record (R.R.) at 74a-76a. The record contains differing accounts of Tiki's symptoms that day, both of which the Board appears to have relied upon when reaching its decision. According to Owner's testimony, she informed Petitioner that Tiki was making "hacking" sounds and having difficulty breathing. Id. at 74a-75a. Tiki also vomited on the car ride to the Hospital, although this was "common" because of Tiki's motion sickness. Id. at 76a. According to the notes in Tiki's medical records, Owner reported Tiki had been "trying to throw up" since early that morning, was "heaving [and] vomiting froth," could "hardly walk," was very lethargic, and had been having trouble breathing since the night before. Id. at 346a. Petitioner's examination revealed increased respiratory sounds over Tiki's trachea and bronchi. Id. He then proposed Tiki may be suffering from canine flu. Id. at 76a. Owner requested that Tiki receive X-rays and blood tests, but Petitioner declined, saying he did not "feel that it was needed." Id. at 77a. Petitioner prescribed amoxicillin and carpaquin for Tiki but took no other action. Id. at 77a-78a.
Owner administered the medications as prescribed. Id. at 78a. Nonetheless, Tiki's condition deteriorated. Id. at 78a-79a. It became harder for Tiki to breathe, and she began making what Owner described as a "death rattle . . . like a noisy breath, and she would fight for that." Id. On February 21, 2016, Owner called the Hospital. Id. at 79a. Staff at the Hospital advised Owner to obtain a vaporizer for Tiki, and Owner complied. Id. The vaporizer helped Tiki's breathing to improve only briefly, "for maybe a half hour, 45 minutes," but it then deteriorated once again. Id.
Owner brought Tiki back to the Hospital on February 22, 2016, for a second emergency visit. Id. at 79a-80a. This time, a different veterinarian examined Tiki. Id. at 223a-24a. Tiki had trouble breathing during the examination, and a lump was present on the left side of her body. Id. at 83a, 220a. Staff at the Hospital performed X-rays, which revealed severe pleural effusion. Id. at 81a, 227a. Tiki remained at the Hospital from February 22, 2016, onward, and never returned to Owner's home. Id. at 81a-82a. Because of limited medical options, Owner chose to euthanize Tiki on February 27, 2016. Id. at 82a, 366a-73a.
On September 19, 2019, a prosecuting attorney from the Department of State (Department) issued an order to show cause against Petitioner, alleging that he failed to maintain proper veterinary medical records. The order also alleged that Petitioner failed to conform to the standards of acceptable and prevailing veterinary medical practice by not thoroughly evaluating Tiki, misdiagnosing her condition, prescribing inappropriate medications, and not offering to perform X-rays. Petitioner filed an answer. The Board delegated the case to a hearing examiner from the Department's Office of Hearing Examiners, and a hearing occurred on August 14, 2020. Petitioner participated in the hearing with counsel. The hearing examiner heard testimony from Lance Budinger, a professional conduct investigator from the Department's Bureau of Enforcement and Investigation; Owner; the Department's expert witness, Brian V. Harpster, DVM (Harpster); Petitioner; Erin Bourinski, a certified veterinary technician at the Hospital; and Petitioner's expert witness, Jerry Alan Greene, DVM (Greene).
In relevant part, the Department presented testimony from Harpster regarding his qualifications as an expert witness. Harpster explained that he previously served on the Board for eight years and was its chairman for six of those years. Id. at 95a. Harpster's curriculum vitae indicates that he served on the Board from 1997 to 2006 and was its chairman from 2000 to 2006. Id. at 382a. Harpster testified that he later began working as a consultant and expert witness. Id. at 94a. Harpster stated that he had "been doing consulting work for the . . . Board . . . with regards to complaints that have been filed with the [B]oard." Id. at 95a. Petitioner's counsel moved to disqualify Harpster, arguing that his testimony was an "impermissible co-mingling of prosecutory and adjudicatory functions of the Board." Id. at 99a. The hearing examiner deferred his ruling so that the Department's counsel could ask Harpster follow-up questions. Id. at 100a. During the questioning, Harpster clarified that he works with prosecutors and not the Board itself, that he does not interact with Board members, and that Board members do not ask him to review cases for them. Id. at 100a-01a. Given this explanation, the hearing examiner denied Petitioner's request to disqualify Harpster. Id. at 103a.
The Department then presented Harpster's expert opinion that Petitioner fell below the standards of acceptable and prevailing veterinary medical practice in his care of Tiki on February 18, 2016. Id. at 110a. Harpster testified that the standard of care in "this type of case, respiratory" required Petitioner to obtain a thorough history of Tiki's symptoms and "not really rely on notes of the technician and the owner." Id. at 113a. Harpster noted that, although the Hospital's receptionist or technician took a history, he did not see any indication in the medical records that Petitioner had asked questions or took notes regarding Tiki's history himself. Id. at 113a-14a, 120a-21a, 139a. Harpster also testified that the standard of care required Petitioner to thoroughly evaluate Tiki's respiratory tract, including her lungs. Id. at 114a. Harpster explained he did not see any indication in the medical records that Petitioner had evaluated Tiki's lungs. Id. at 114a, 122a-23a, 137a. In "respiratory distress" cases, Harpster added, the standard of care required Petitioner to perform X-rays and blood tests, neither of which Petitioner did. Id. at 114a, 148a-49a.
Petitioner sought to rebut Harpster's testimony with Greene's contrary expert opinion that Petitioner's treatment did not fall below the standard of care. Id. at 261a. Greene observed that Tiki's medical records described her general appearance on February 18, 2016, as "normal," but indicated that her respiratory system was "abnormal" in that Petitioner noted increased sounds over her trachea and bronchi. Id. at 268a-69a, 279a-81a. Greene faulted Harpster for placing too much emphasis on Owner's subjective reports of Tiki's symptoms rather than these objective results of Petitioner's examination. Id. at 279a-81a. Greene further challenged Harpster's assertion that Petitioner failed to evaluate Tiki's lungs, explaining that Petitioner noted increased sounds over her bronchi, which are "[w]ithin the lung parenchyma themselves." Id. at 268a, 286a. With respect to the standard of care, Greene opined that it required Petitioner to examine Tiki, determine a presumptive diagnosis, and develop a treatment plan, which is what Petitioner did. Id. at 271a. Greene further opined it was not necessary for Petitioner to perform X-rays and blood tests because "the signs and symptoms that were being shown were not that severe, and it basically did not require any type of invasive workup." Id. at 277a, 303a-04a.
On January 15, 2021, the hearing examiner issued his proposed adjudication and order. The hearing examiner concluded that Petitioner had not failed to maintain proper veterinary medical records, but that his care of Tiki on February 18, 2016, fell below the standards of acceptable and prevailing veterinary medical practice because he failed to order X-rays and blood tests. The hearing examiner's proposed order reprimanded Petitioner, directed him to pay a civil penalty of $1,000, directed him to pay costs of $2,360.09, and required him to complete at least three hours of continuing education in veterinary diagnosis and treatment related to respiratory and lung disease.
Petitioner filed a brief on exceptions to the proposed adjudication and order, and the Department filed a brief in opposition. On May 26, 2021, the Board issued a final memorandum order adopting the hearing officer's proposed adjudication and order. The Board rejected Petitioner's claim on exceptions that the hearing examiner should have disqualified Harpster because of the appearance his testimony resulted in intermingled prosecutorial and adjudicatory functions. The Board...
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