Virginia Board of Veterinary Medicine v. Lori D. Leonard

COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Beales and Senior Judge Clements
UNPUBLISHED
Argued at Richmond, Virginia
VIRGINIA BOARD OF VETERINARY MEDICINE
MEMORANDUM OPINION* BY
v. Record No. 0252-14-2 JUDGE ROBERT P. FRANK
NOVEMBER 12, 2014
LORI D. LEONARD
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Beverly W. Snukals, Judge
James E. Rutkowski, Assistant Attorney General (Mark R. Herring,
Attorney General; Cynthia V. Bailey, Deputy Attorney General;
Allyson K. Tysinger, Senior Assistant Attorney General; Charis A.
Mitchell, Assistant Attorney General, on briefs), for appellant.
John A. Conrad (The Conrad Firm, on brief), for appellee.
In this administrative appeal, the Virginia Board of Veterinary Medicine (the Board)
challenges an order of the Richmond Circuit Court. That order reversed an order of the Board
sanctioning Lori D. Leonard, D.V.M. (appellee), for violating Code § 54.1-3807(5) and 18 VAC
150-20-140(6), (7), and (8). On appeal, the Board contends the circuit court erred in allowing
appellee to argue that the Board’s interpretation of its own regulation was erroneous, because it
was not contained in the petition for appeal. The Board also argues it was error for the circuit
court to reverse the Board’s order based on the court’s own interpretation of that regulation.
Further, the Board maintains the circuit court failed to give proper deference to the Board’s
interpretation of its own regulation. For the reasons stated, we affirm the circuit court’s decision
to address regulatory interpretation. However, we reverse the circuit court’s interpretation of the
regulation and reinstate the decision of the Board.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
BACKGROUND1
On June 3, 2013, the Board held a formal hearing to determine if appellee had failed to
uphold the proper standard of care in performing surgery on a canine. Upon hearing evidence,
the Board issued a final order on June 3, 2013.
That order made certain findings of fact: On February 15, 2011, appellee performed an
incomplete “spay operation”2 on a certain canine by leaving a large portion of the right ovary as
later revealed by an ultrasound. A second spay operation was later performed by a different
veterinarian to remove the remnant of the right ovary. At the hearing, Dr. Richard P. Suess, Jr.
testified appellee failed to meet the standard of care by not removing both ovaries.
The Board concluded appellee’s actions violated Code § 54.1-3807(5)3 and 18 VAC
150-20-140(6), (7) and (8)4of the regulations. Thus, the Board, among other sanctions,
reprimanded appellee.
1
The underlying facts are not in controversy.
2
To “spay” is “[t]o take the ovaries and uterus out of female animals; makes them unable
to reproduce.” www.pedmd.com (last visited July 29, 2014).
3
Code § 54.1-3807 states in part:
The Board may refuse to grant or to renew, may suspend or revoke
any license to practice veterinary medicine or to practice as a
veterinary technician or registration to practice as an equine dental
technician if such applicant or holder:
* * * * * * *
5. Is guilty of unprofessional conduct as defined by regulations of
the Board.
4
18 VAC 150-20-140 states in part:
Unprofessional conduct as referenced in § 54.1-3807(5) of the
Code of Virginia shall include the following:
* * * * * * *
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Appellee’s third assignment of error, as stated in her petition for appeal, is:
The Final Order of the Vet Board [sic] is erroneous because there
is not substantial evidence in the record of this case that Dr.
Leonard violated any state law, federal law, and/or Vet Board
regulations pertaining to the practice of veterinary medicine, that
she practiced veterinary medicine in such a manner as to endanger
the health and welfare of her patients or the public, or that she is
unable to practice veterinary medicine with reasonable care or
safety, in violation of Virginia Code Section 54.1-3807(5) and 18
VAC 150-20-140(6), (7), and (8) of the Regulations Governing the
Practice of Veterinary.
In her petition for appeal to the circuit court, appellee challenged the testimony of the
Board’s expert, Dr. Suess, contending he never identified a specific act or omission which
violated the statute or regulation. Appellee argued Dr. Suess never testified appellee violated a
statute or regulation. Further, appellee maintained the failure to remove the entire right ovary
does not prove she violated state law or regulation.
Nowhere in her petition did appellee expressly contend the Board misinterpreted its
regulation nor did it expressly raise her later argument that the regulation required multiple acts
or omissions.
In her counsel’s opening statement to the circuit court, appellee did argue the regulations
in question required multiple patients and multiple animals. She further contended the
6. Violating any state law, federal law, or board regulation
pertaining to the practice of veterinary medicine, veterinary
technology or equine dentistry.
7. Practicing veterinary medicine or as an equine dental technician
in such a manner as to endanger the health and welfare of his
patients or the public, or being unable to practice veterinary
medicine or as an equine dental technician with reasonable skill
and safety.
8. Performing surgery on animals in an unregistered veterinary
establishment or not in accordance with the establishment permit
or with accepted standards of practice.
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regulations address systemic or widespread prohibited acts. In the instant case, appellee argued
there was only a solitary breach of the standards of care.
The Commonwealth objected to appellee’s argument since the petition for appeal did not
contend the Board erred in its interpretation of its own regulation.
The following exchange occurred between the court and appellee’s counsel:
THE COURT: But I guess my question is, I’m not sure I really
knew this was your argument either about the systemic versus
solitary breach case. I mean, is that clearly set out in your petition
as it is here this morning?
MR. CONRAD: It’s set out in the context of stating that there’s no
substantial evidence.
THE COURT: Well, I understand that. But you would agree that
this is not what I came in thinking that that’s what your argument
was going to be, but that’s fine. We’ll deal with that. But in broad
terms, yes, you said that there’s no substantial evidence to support
any violation of law or any of the regulations 6, 7, and 8. But,
specifically, I don’t think the argument was made that the reason
why there is no substantial evidence is because it says, quote: In
[the dog’s] case versus the use of, plural, animals and – well,
animals. Does it? I mean, maybe it does. I just maybe didn’t
catch it.
After appellee’s counsel attempted to explain whether her assignment of error
encompassed her argument that the regulation required multiple incidents, the circuit court
responded that appellee’s third assignment of error did not seem to match her argument before
the circuit court at the hearing. Nevertheless, the court indicated that discrepancy did not
prohibit her from arguing that point before the court, finding that appellee’s counsel
“technically” had “probably covered it” in the petition for appeal.
Appellee was permitted to argue the Board’s incorrect interpretation of its regulations,
i.e., that the regulation does not prohibit single acts of endangerment, emphasizing the plural
nature of the words “patients” and “animals.”
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The trial court requested the parties brief appellant’s third assignment of error, i.e.,
whether it included appellee’s statutory interpretation argument.
In its letter opinion of January 14, 2014, the circuit court found there was not substantial
evidence in the agency record to support the agency decision under Code § 2.2-4027 and thus
reversed the Board’s order of June 3, 2013. The circuit court interpreted §§ 7 and 8 of 18 VAC
150-20-140 to require multiple incidents of endangerment and multiple surgeries on animals, not
in accordance with accepted standards of practice. The court observed the Board found evidence
of only one incident. Thus, based on the circuit court’s interpretation of the regulation, there was
not substantial evidence of multiple incidents to support the Board’s order.
The circuit court also addressed the scope of assignment of error three and found appellee
properly preserved this issue on appeal to the circuit court. The court acknowledged appellee’s
factual argument under this assignment of error has changed from her petition for appeal, yet
found her assignment of error “is consistent.” The court noted appellee presented her current
argument in her closing argument to the court and to the Board.
This appeal follows.
ANALYSIS
Appellant first argues the circuit court erred in allowing argument on and ultimately basing
its ruling upon a question of regulatory interpretation, not raised in appellee’s petition for appeal to
the circuit court, which petition was limited to the substantiality of the evidence. Rule 2A:4(b)
states, “[t]he petition for appeal [to the circuit court] shall designate the regulation or case decision
appealed from, specify the errors assigned, state the reasons why the regulation or case decision is
deemed to be unlawful and conclude with a specific statement of the relief requested.” See also
Boone v. Harrison, 52 Va. App. 53, 63, 660 S.E.2d 704, 709 (2008) (addressing the requirements of
Rule 2A:4(b)). Under the circumstances of this case, we find that the regulatory interpretation
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argument is subsumed in the petition for appeal, and, for that reason, the circuit court did not err in
permitting argument on that issue. Further, appellee argued the issue of regulatory interpretation
before both the Board and the circuit court. The circumstances here are different from those in
Boone, where the circuit court sua sponte raised a due process issue in a letter opinion when that
issue was not litigated in the administrative agency or even raised by either party at the hearing in
the circuit court. Id. at 63-64, 660 S.E.2d at 709. Moreover, we find it instructive that the purpose
of Rule 5A:12(c)(1), which similarly governs a petition for appeal to this Court – and specifically
the assignments of error – “is to point out the errors with reasonable certainty in order to direct [the
court] and opposing counsel to the points on which [the] appellant intends to ask a reversal of the
judgment, and to limit discussion to these points.” Findlay v. Commonwealth, 287 Va. 111, 116,
752 S.E.2d 868, 871 (2014). As the issue of regulatory interpretation was thoroughly argued below,
the parties were on notice as to the question. Therefore, we do not subvert the purpose of Rule
2A:4(b) or Rule 5A:12(c)(1) by addressing the merits of the issue.
Appellant contends the circuit court afforded no deference to the Board’s interpretation of its
own regulation but applied its own interpretation. The circuit court concluded that because the
regulation in question employed plural words, “patients” and “animals,” a single act of
unprofessional conduct did not constitute a violation of the regulation.
[W]here the question involves an interpretation which is within the
specialized competence of the agency and the agency has been
entrusted with wide discretion by the General Assembly, the
agency’s decision is entitled to special weight in the courts. “The
rationale of the statutory scheme is that the [administrative agency]
shall apply expert discretion to matters coming within its
cognizance, and judicial interference is permissible only for relief
against the arbitrary or capricious action that constitutes a clear
abuse of the delegated discretion. The reviewing judicial authority
may not exercise anew the jurisdiction of the administrative
agency and merely substitute its own independent judgment for
that of the body entrusted by the legislature with the administrative
function.” Va. Alcoholic Beverage Control Comm’s v. York St.
Inn, Inc., 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979).
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Johnston-Willis, Ltd. v. Kenley, 6 Va. App. 231, 243, 369 S.E.2d 1, 8 (1988) (emphasis added).
“[W]here the legal issues require a determination by the reviewing court whether an agency has,
for example, accorded constitutional rights, or failed to observe required procedures, less
deference is required and the reviewing courts should not abdicate their judicial function and
merely rubber-stamp an agency determination.” Id. at 243, 369 S.E.2d at 7-8. “‘A decision is
arbitrary and capricious only if there is no credible evidence in the record to support the finding
and the agency arbitrarily disregarded uncontradicted evidence.’” Mazloumi v. Dep’t of Envtl.
Quality, 55 Va. App. 204, 209, 684 S.E.2d 852, 855 (2009) (quoting Palmer v. Commonwealth
Marine Res. Comm’n, 48 Va. App. 78, 87, 628 S.E.2d 84, 89 (2006)). Under this deference,
“[c]ourts generally defer to an agency’s interpretation of its own regulations.” Id. See Code
§ 2.2-4027 (“the court shall take due account of the . . . experience and specialized competence
of the agency, and the purpose of the basic law under which the agency has acted”).
However, courts do not defer to an agency’s interpretation “‘[i]f the issue falls outside the
area generally entrusted to the agency, and is one in which the courts have a special competence,
i.e., the common law or constitutional law . . . .’” Johnston-Willis, Ltd., 6 Va. App. at 243, 369
S.E.2d at 8 (quoting Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 914-15 (3d Cir. 1981) (citing
Piper v. Chris Craft Industries, 430 U.S. 1, 41 n.27 (1977))).
Thus, our inquiry is whether the regulation falls within the “specialized competence” of
the Board. If so, the circuit court erred in giving no deference to the Board’s interpretation.
The Board is one of many health and professional regulatory boards. These boards can
promulgate regulations necessary for the preservation of the health, safety, and welfare of the
public when:
1. The unregulated practice of the profession or occupation can
harm or endanger the health, safety or welfare of the public, and
the potential for harm is recognizable and not remote or dependent
upon tenuous argument;
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2. The practice of the profession or occupation has inherent
qualities peculiar to it that distinguish it from ordinary work and
labor;
3. The practice of the profession or occupation requires
specialized skill or training and the public needs, and will benefit
by, assurances of initial and continuing professional and
occupational ability.
Code § 54.1-3805 prohibits anyone from practicing veterinary medicine without being
licensed by the Board.
The statutory scheme, along with 18 VAC 150-20-140, clearly indicates that the Board is
charged with protecting the public and animals from unprofessional conduct, including
malpractice.
The Board interpreted its own regulation, 18 VAC 150-20-140, as requiring only a single
incident of unprofessional conduct. Appellee’s argument would allow a veterinarian to engage
in one act of improper conduct with impunity. Only the second act, she contends, would trigger
the Board’s involvement. Such an interpretation only protects subsequent animals and leaves the
first animal subject to unaccountable conduct, no matter how egregious.
Whether or not to protect all animals or only subsequent animal patients is within the
specialized competence of the Board. Again, its charge is to protect the health, welfare, and
safety of the public, including animal patients. It is inconceivable that the Board would ignore
the safety of the first animal subjected to unprofessional conduct.
Appellee further argues that the Board erroneously relied on Code § 1-227. We disagree.
In this case, the circuit court erroneously focused on the plural language of Code § 1-227 in
interpreting the regulation. Code § 1-227, which is contained in Chapter 2.1 (Common Law and
Rules of Construction) states, in its entirety, “[a] word used in the singular includes the plural
and a word used in the plural includes the singular.” While appellee contends that this section
does not apply to agency regulations, our case law holds otherwise. See Avalon Assisted Living
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Facilities v. Zager, 39 Va. App. 484, 503, 574 S.E.2d 298, 307 (2002) (“We see no reason not to
apply these same rules to the interpretation of regulations adopted by an administrative agency
pursuant to statutory authority granted it by the legislature.”). Code § 1-227 very clearly
demonstrates that the circuit court erred in its interpretation of 18 VAC 150-20-140.
18 VAC 150-20-140(7) has two parts. The first part concerns a veterinarian’s
unprofessional conduct which endangers the health and welfare of animals or the public. The
second part addresses the veterinarian’s inability to practice veterinary medicine with reasonable
skill and safety. Unprofessional conduct might arise from the veterinarian’s physical or mental
incapacity to practice with reasonable skill and safety. Appellee argues that the second
paragraph addresses a single act of unprofessional conduct. She contends this reinforces her
argument that the first part of the section requires multiple acts of unprofessional conduct, thus
supporting the circuit court’s interpretation. Appellee misreads the second part of section 7.
That language addresses the veterinarian’s capacity to perform veterinary medicine, not the
actual performance of her profession. While evidence of a veterinarian’s performance in any
given procedure may be relevant to demonstrate the veterinarian’s physical or mental ability to
practice with reasonable skill and safety, the former is not a requirement to prove the second part
of section 7.
We therefore conclude the circuit court erred in not affording proper deference to the
Board’s interpretation of its own regulation. The circuit court improperly employed its own
interpretation of the regulation.
We therefore will affirm the circuit court’s decision to allow the regulatory interpretation
argument, but we reverse the circuit court’s interpretation of the regulation and reinstate the
decision of the Board.
Affirmed in part and
reversed in part.
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