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NELSON v. STATE BOARD OF VETERINARY MEDICINE: THE COMMONWEALTH COURT CARVES A SHARPER DEFINITION OF VETERINARY MALPRACTICE

Kim Eileen Bell


16 Widener L.J. 473 (2007)
Publish Date:
2007
Place of Publication: Widener University School of Law
Printable Version

NELSON v. STATE BOARD OF VETERINARY MEDICINE: THE COMMONWEALTH COURT CARVES A SHARPER DEFINITION OF VETERINARY MALPRACTICE
Widener Law Journal
2007

Annual Survey of Pennsylvania Administrative Law
Administrative Agency Statutory Interpretation

*473 NELSON v. STATE BOARD OF VETERINARY MEDICINE: THE COMMONWEALTH COURT CARVES A SHARPER DEFINITION OF VETERINARY MALPRACTICE


Kim Eileen Bell

Copyright © 2007 by the Widener University School of Law; Kim Eileen Bell (reprinted with permission)


 

I. Introduction

With the sophistication in veterinary medical procedures, specialties, and medications and with the growing awareness of the important role that companion animals play in human society, it is no surprise that veterinarians are under greater scrutiny in the practice of their professions. In Nelson v. State Board of Veterinary Medicine, [FN1] a canine owner levied a complaint against her veterinarian for malpractice, and the State Board of Veterinary Medicine subsequently disciplined him. [FN2] On appeal, the Commonwealth Court reviewed the unique relationship of who is the “patient” in the “doctor-patient” relationship and who is the “client.” [FN3] The court then addressed for the first time the issue of what behaviors constitute veterinary medicine malpractice. [FN4]
 
Part II of this survey provides a foundation of some basic animal law doctrine, as well as the current state of the law of veterinary malpractice in the United States and, more narrowly, in Pennsylvania. Part III of this survey then examines the Nelson case and how the Commonwealth Court came to its conclusion that rude behavior toward a human client does not constitute malpractice of the animal patient. Part IV of this survey renders an evaluation and critique of the Commonwealth Court's decision from the viewpoint *474 of administrative law. Part V concludes and summarizes this survey.

II. Background: Current State of Relevant Animal Law and the Law of Veterinary Medical Malpractice

Veterinary medicine is a unique area of medicine because it is the only area of recognized medicine where the doctor's patient is not a homo sapiens. [FN5] This is an important distinction in that our legal system draws a barrier between the human and nonhuman in terms of standing to sue. [FN6] A nonhuman generally does not have standing to sue for injury or pain; [FN7] nor, obviously, does the nonhuman have access to courts to testify on his own behalf for pain or suffering. This is because nonhuman animals, in all fifty states, are still considered mere property in the eyes of the law. [FN8] In Pennsylvania, the Dog Law statute [FN9] expresses this for canines, as does Pennsylvania case law. [FN10] Accordingly, the law of property is *475 usually fertile ground for causes of action that can bring desirable results, [FN11] as is Article 2 of the Uniform Commercial Code (Sales) and products liability law. [FN12]
 
On the other hand, the legal system also draws a barrier between living things and inanimate objects. Many living organisms possess a quality called sentience: the ability to be conscious of your existence, seeking to avoid pain and maximize comfort. [FN13] In other words, unlike a lamp, what binds human and nonhuman animals on an equal plane is that we all have the capacity to suffer. [FN14] Because our laws are constructed to protect us from this fear and pain, [FN15] the nonhuman members of the animal kingdom have been advanced certain legal protections that distinguish them from inanimate chattel like a lamp. [FN16] All states have animal cruelty laws where infliction of pain and other violations will lie in criminal punishment ranging from misdemeanors to felonies. [FN17] Other areas of the law are also sculpting legal distinctions where animals are at issue: in divorce *476 and custody arrangements, [FN18] in wills and trusts, [FN19] and in emotional distress tort cases. [FN20] In addition, many legal scholars are assessing the current law and advocating for change. [FN21]
 
This brings us to the law of medical malpractice. Courts tend to be split on whether to apply human medical malpractice precepts to veterinary injury cases. For example, the court in Southall v. Gabel [FN22] applied a simple negligence standard rather than malpractice saying that “[t]he very essence of ‘malpractice’ is the patient-physician relationship ... [and] [t]he patient-physician *477 relationship was that between the colt and Dr. Gabel ...” [FN23] Likewise, the dissent in Price v. Brown, [FN24] also argues against using veterinary malpractice as a cause of action, saying that the doctor-patient relationship is different than with a human doctor. [FN25]
 
On the other hand, veterinary physicians are schooled to rigors parallel to human physicians: mandatory undergraduate college, medical college, residency/clinical rotations, and finally possessing the doctor of medicine title. [FN26] Upon this analogy, many courts align their veterinary jurisprudence with human medical jurisprudence, adopting malpractice as a valid cause of action. In Williamson v. Prida, [FN27] for example, a California appellate court found that the medical malpractice standard “applies to veterinary malpractice cases as well.” [FN28] In several other jurisdictions, including Nebraska, Louisiana, and Iowa, the courts also applied malpractice standards to veterinarians. [FN29] And in Pennsylvania, Price is the leading case that established veterinary malpractice as a common law cause of action, concluding “that professional negligence concepts also extend to veterinary medicine.” [FN30]
 
*478 Aside from case law, Pennsylvania has enacted legislation regulating the practice of veterinary medicine. The Veterinary Medicine Practice Act was enacted in 1974 [FN31] and substantively amended twice. [FN32] The statute provides broad legislative coverage for a variety of aspects of veterinary medicine from licensing to disciplinary matters. [FN33] The statute also established a State Board of Veterinary Medicine as the agency responsible for implementing the Act, with sufficient powers to regulate the practice of veterinary medicine. [FN34]

III. Nelson v. State Board of Veterinary Medicine [FN35]


A. Facts

A seventy-six-year old woman, Ms. Betty Voorhies, “brought her ailing seventeen-year old dog, ‘Lady,’ to [Dr. Nelson] to be euthanized.” [FN36] For the past fourteen years, Dr. Nelson had been treating Ms. Voorhies' animals. When Ms. Voorhies brought Lady to Dr. Nelson on September 4, 2001, “Lady had lost sight in one eye” and begun developing breathing difficulties. [FN37] Dr. Nelson had been recommending euthanasia to Ms. Voorhies; however, each time she agreed to the procedure, she changed her mind. Dr. Nelson believed that Lady was suffering and wanted to do the procedure as quickly as possible before Ms. Voorhies changed her *479 mind again. He attempted to inject the euthanasia solution into Lady's right front leg, but was unsuccessful due to an edema and Lady's struggle despite being held down. [FN38] He then attempted to inject Lady's left front leg and was just as unsuccessful. He finally injected Lady in her jugular vein. Lady howled, then collapsed. “Ms. Voorhies cried and yelled at Dr. Nelson” for killing her dog. [FN39] Soon thereafter she filed a complaint with the Bureau of Enforcement and Investigations (“Department”) regarding the manner in which Dr. Nelson euthanized Lady.
 
Five months after Lady died, Mr. Tonelli, the Department investigator, met with Dr. Nelson about Lady's death. Dr. Nelson became quite agitated, denied any wrongdoing, and referred to Ms. Voorhies as a “******* wacko.” [FN40] During that interview, Dr. Nelson telephoned Ms. Voorhies. [FN41] She yelled at him again and accused him of torturing and murdering Lady, and he snapped back at her telling her that “her soul would ‘rot in hell’ for what she was trying to do to him.” [FN42]

B. Agency Investigation and State Veterinary Board's Adjudication

Seven months after the investigative interview, the Department issued an Order to Show Cause to Dr. Nelson for “verbally harassing the owner of a patient animal,” alleging grounds for disciplinary proceedings under two provisions of the Veterinary Medicine Practice Act. [FN43] The first charge was violation of section 21(11) of the Act, which allows disciplinary action for incompetence. [FN44] The second charge was violation of section 21(20) *480 of the Act, which allows disciplinary action for professional incompetence. [FN45] Dr. Nelson did not dispute the facts alleged but explained in a letter that Ms. Voorhies was a difficult person who had a history of suing or contemplating suing physicians. [FN46] He explained that she had called him at home all hours of the night and that his staff tried to accommodate her. [FN47] He also admitted that he referred to her in a derogatory way with Mr. Tonelli; however, Dr. Nelson had known Mr. Tonelli for twenty years and thought his comment was informal and off the record. [FN48]
 
Dr. Nelson and Mr. Tonelli testified at a hearing by the State Board of Veterinary Medicine (“Board”)--that Board has authority to conduct hearings. [FN49] The Board split the result. It dismissed the first charge that Dr. Nelson violated section 21(11) of the Veterinary Medicine Practice Act, concluding that this statutory provision applies only to the animal patient. [FN50] The Board did, however, uphold the second charge against section 21(20) and ruled that Dr. Nelson committed professional incompetence when he verbally harassed the dog's owner. [FN51] The Board ordered a public reprimand, a continuing education course in client *481 bereavement, “an anger management course and ... a letter of apology to Ms. Voorhies,” but left his license to practice intact. [FN52] Dr. Nelson appealed. [FN53]

C. Commonwealth Court's Analysis and Holding

The scope of review for the Commonwealth Court is “whether the [Veterinary] Board violated constitutional rights, committed an error of law, or whether all material findings of fact are supported by substantial evidence .... An agency's determination will be set aside if the agency has abused its discretion, exceeded its authority or misapplied the law.” [FN54] Dr. Nelson raised several issues on appeal; however, the court did not find it necessary to address all of them due to its holding on the first one. [FN55]
 
Dr. Nelson's first contention was that the Veterinary Medicine Practice Act only covers “the relationship between a veterinarian and his animal patient,” and accordingly, the Board exceeded its authority in disciplining him for conduct ostensibly outside the boundaries of the Act. [FN56] The Board counter-argued that the Act authorized it to discipline veterinarians not only for conduct toward animal patients, but conduct toward human owners as clients as well as the general public. [FN57] The court did acknowledge that while the Act expresses a veterinarian's duty to the patient animal, [FN58] it also expresses some duties to the animal's client owner. [FN59] However, the court remarked that the Act is textually *482 silent as to the specific issue at bar, namely, what conduct is appropriate between the veterinarian and the human client. [FN60]
 
The court then proceeded to fully analyze the meaning of the Act by looking at its plain text and ascertaining legislative intent. [FN61] Its authority for this lies in Pennsylvania case law which holds that although “[t]he agency charged with administration of an act is entitled to deference in its interpretation of that act ... when convinced that the statutory interpretation adopted by an administrative agency violates legislative intent, courts may disregard the interpretation.” [FN62] Further, it said that, “the proper construction of a statute is a question of law and, thus, [the court's] review [was] plenary.” [FN63]
 
More specifically, then, the court proceeded de novo to determine whether the behavioral conduct between a veterinarian and human client is given meaning under the terms “incompetence” or “professional incompetence” as alleged. [FN64] Dr. Nelson argued that both terms are synonymous, referring narrowly to patient malpractice. [FN65] The Board argued that “incompetence” refers to the malpractice of the science of veterinary medicine and “professional incompetence” encompasses broader conduct, opining that any other interpretation would render one of the terms statutory surplus. [FN66] The court then used two traditional canons of statutory interpretation to determine legislative intent: 1) words and phrases shall have their common, ordinary meanings; and 2) statutes must be construed to give full effect to all provisions, lest a provision be surplus. [FN67]
 
*483 Although Dr. Nelson relied on Pennsylvania State Police v. Klimek [FN68] as authority for the definition of “professional incompetence,” the court cited various other Pennsylvania case law opinions which more directly defined the terms “professional,” “gross incompetency,” and “incompetence/gross misconduct.” [FN69] Dr. Nelson proposed that the holdings in Chaby and Ciavarelli, in particular, concluded that rude behavior and poor manners do not constitute professional incompetence. [FN70] The court also provided persuasive authority from other jurisdictions that defined the contours of “professional incompetence” to mean “a departure from the technical standards required to practice a profession.” [FN71]
 
The court then looked to the Board's own regulations. [FN72] It determined that the Board defined “competency” in Principle 1 of the Rules of Professional Conduct (“Rules”), [FN73] and that the language used in the Rules is carved around veterinarian's knowledge and skill and not broadly worded to include unprofessional interpersonal conduct of the nature at issue in this case. [FN74] “Competence” in the Rules juxtaposed with “incompetence” in the statute, the court concluded, operate as complementary definitions. [FN75] The court's final argument against the Board's interpretation of the statute (where “incompetence” refers to the science of veterinary practice and “professional incompetence” refers to broader interpersonal conduct) is that to *484 follow the Board's view would render the statute unconstitutionally vague and thus violative of due process. [FN76] “[T]o expand the meaning of ‘professional incompetence,”’ the court said, “would leave persons of common intelligence wondering where the line was drawn on ‘professional incompetence.”’ [FN77] In the end, the court's final judicial holding was that “Dr. Nelson's inexcusably rude conduct” did not rise to professional incompetence and the Board's adjudication was reversed. [FN78]
 
Dr. Nelson raised several other issues before the court. Although he claimed both that the Act is unconstitutionally overbroad and that the Board's hearing did not comply with due process because the Board commingl[ed] [its] prosecutorial and adjudicatory functions, [FN79] the court did not find it necessary to reach an opinion on these issues. [FN80]

IV. Evaluation

It is arguable that the Commonwealth Court overreached its purview in reversing the Board. It is true that questions of law are plenary matters for the court and what was at issue in this case was a question of statutory interpretation where the Act was unclear. Essentially, the administrative law procedure used by the Commonwealth Court parallels what is also widely known, in the vernacular, as the “Chevron two-step.” [FN81] In Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the United States Supreme Court devised a two-part test for review of government agency conclusions. [FN82] First, if Congress has spoken directly on the precise question, then both the court and the agency “must give effect to the unambiguously expressed intent of Congress.” [FN83] Second, “if the statute is silent or ambiguous,” the court may not *485 substitute its own construction of the statute but must defer to an agency's reasonable interpretation of the statute. [FN84]
 
The Board construed that the terms “incompetence” and “professional incompetence” must have different meanings or else, according to statutory construction under Pennsylvania Consolidated Statutes title 1, section 1921(a), one term would be mere surplusage of the other. [FN85] Because the Board's rationale is grounded in a legitimate canon of statutory construction, it is arguable that this is a reasonable reading of the terms. It may not be “the best” reading of the terms in the eyes of some reasonable minds, but it is, arguably, reasonable to others. Although the court's arguments are strong, the court failed to show that the Board's interpretation was not reasonable or was not permissible. Support for the proposition of Chevron deference also lies in recent Pennsylvania case law. This very court, in Arippa v. Pennsylvania Public Utility Commission, [FN86] stated that “an administrative agency's expert interpretation of a statute for which it has enforcement responsibility is entitled to great deference and will not be reversed unless clearly erroneous.” [FN87] It further bolstered itself when it went on to state that “[o]nly when an agency is acting in its expert capacity, either issuing a regulation or acting in an adjudicative capacity, is an agency given deference in its interpretation of a statute.” [FN88]
 
Second, when the court used the Board's regulations to give meaning to statutory “professional incompetence” as authority for its proffered explanation, it missed considering Principle 2(a) which states that “[v]eterinarians should conduct themselves in relation to the public, their colleagues, and the allied professions so as to merit their full confidence and respect.” [FN89] This stated tenet of professional responsibility necessarily implies that the Board chose *486 to regulate its profession beyond “mere scalpel” techniques as do many other professions. [FN90] While agency deference is encouraged in statutory interpretation, an agency is given even greater deference in the interpretation of its own regulations, promulgated by express or implied delegation from the legislature. [FN91] Agency regulations “are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” [FN92] In the Veterinary Medical Practice Act, the General Assembly expressly gave the Veterinary Board the ability to regulate unprofessional practices by licensees as stated in the legislative intent and purpose. [FN93]
 
Third, the court was inconsistent in its methods. The Chaby and Ciavarelli opinions require “gross” incompetence as written in their respective statutes. [FN94] In Nelson, the term is simply “professional incompetence.” The court did acknowledge that there is a difference in the terms; however, it discounted that there was a meaningful difference in the degree of incompetence without substantiating why. [FN95] Equally fair, then, is the proposition that there is a meaningful difference in the terms and, thus, implication can be made that in Nelson the incompetence does not need to rise *487 to the level of “gross” in the way it is defined in the Chaby and Ciavarelli cases. The court's act of ignoring word construction in this instance seems illogical in light of the intensity with which it carved apart the other words. Further, as a matter of express language, if the legislature wanted to, it could have included “gross” in its definition of incompetence just like it did in the statutes regulating the professions at issue in Chaby and Ciavarelli. Consider the legislative history on the Veterinary Medicine Practice Act. The original version of the Act [FN96] contained the words “gross malpractice” as a ground for disciplinary action. [FN97] When that bill was amended in 1986, [FN98] the legislature deleted the words “gross malpractice” and substituted the current language of “incompetence, gross negligence, or other malpractice ...” [FN99] From this, a rational inference can be made that the legislature intended this express language and while it was re-drafting this very section, it could have added “gross” to “professional incompetence” in paragraph twenty of the Act if it wanted to.
 
Fourth, another look at the legislative history of the Veterinary Medicine Practice Act imparts the sense that the legislature intended for the practice of veterinary medicine to include activities beyond the scalpel. During the House floor debate on HB 1646, [FN100] the legislature engaged in debate over a provision in the amendment that regulates and punishes a veterinarian for unclean, unsanitary premises. [FN101] Indeed, paragraphs eight and nine of the Act do regulate the business establishments of veterinarians. [FN102] Likewise, the statutory definition of “veterinary medicine” calls for inclusion of administrative activities as part of veterinary medicine, [FN103] and the statutory definition of the “practice of *488 veterinary medicine” includes rendering advice. [FN104] Surely these are activities beyond the scalpel, and the court appears to have not addressed these. [FN105]
 
Last, the court used the rationale that the Act might be deemed unconstitutionally vague if it accepted the Board's interpretation. Again the court did not explain why or substantiate its opinion. Instead it just said, “Thus, to expand the meaning of ‘professional incompetence,’ as argued by the Board, would leave persons of common intelligence wondering where the line was drawn on ‘professional incompetence”’ between personal manners and use of a scalpel. [FN106] Arguably, the term is just as vague with the court's interpretation. Short of a legislative amendment, persons of common intelligence will still wonder where the line is. Ironically, the Board's interpretation would be all-inclusive, thus eliminating most questions of what behavior is in and what is out. The court's reasoning on this issue is one-sided and, therefore, flawed.
 
The Commonwealth Court never did demonstrate why it thought the Board's adjudication was arbitrary or plainly violated the statute. Instead, it engaged in a detailed debate over the meaning of a word and put forward its own preference on a minor issue where no constitutional liberty interest was at stake. This, respectfully, should have been left to the Board.

V. Conclusion

The State Board of Veterinary Medicine disciplined Dr. Nelson, a veterinarian, for unprofessional, rude conduct toward his human client under the statutory provision of “professional incompetence” as listed in the Veterinary Medicine Practice Act. The Commonwealth Court reversed the Board's decision, holding that the term professional incompetence only applies to the practice of medicine on patient animals. Putting aside the substantive merits of the case of whose interpretation of the word is better or personal sense for the ultimate result, administrative *489 law dictates that because the Board's interpretation had reasonable grounding in statutory construction, the court owed this agency deference.

 
[FN1]. 863 A.2d 129 (Pa. Commw. Ct. 2004).

[FN2]. Id. at 131-32.

[FN3]. Id. at 134-35.

[FN4]. Id. at 135-39.

[FN5]. Homo sapiens is the Latin genus and species name for modern humans. Mark L. Weiss & Alan E. Mann, Human Biology and Behavior 35 (1975). In terms of biological classification, man is part of the larger family of hominids (sharing similar dental structures and lacking tails), and the larger order of primates and class of mammals (sharing characteristics of being warm-blooded and nursing their young), and finally the subphylum of veterbrata (sharing basic characteristics such as segmented spinal columns),--all of whom are members of the kingdom of animals (distinguished from the kingdom of plants). Id. at 35. It is instructive to note that these categories play a role in fashioning various legal contours for animals in the different areas of the law. Sonia S. Waisman et al., Animal Law: Cases and Materials 24 (2d ed. 2002).

[FN6]. See, e.g., Price v. Brown, 680 A.2d 1149, 1155 (Pa. 1996) (Castille, J., dissenting).

[FN7]. Cf. id. (explaining that medical malpractice should not be extended to veterinarians because the “patient” is unable to bring suit).

[FN8]. Waisman et al., supra note 5, at 91.

[FN9]. 3 Pa. Stat. Ann. § 459-601(a) (West 2004). “Dogs to be personal property[:] All dogs are hereby declared to be personal property and subjects of theft.” Id.

[FN10]. See, e.g., Price, 680 A.2d at 1154 (Castille, J., dissenting) (“Under Pennsylvania law, dogs are recognized as personal property.”). See also Desanctis v. Pritchard, 803 A.2d 230 (Pa. Super. Ct. 2002). In Desanctis, divorced litigants were disputing their prior shared custody and visitation agreement regarding their dog, Barney, and the court voided that part of the agreement which attempted custody or visitation with personal property, holding that “[a]ppellant is seeking an arrangement analogous, in law, to a visitation schedule for a table or a lamp.” Desanctis, 803 A.2d at 232.

[FN11]. Price, 680 A.2d at 1154 (Castille, J., dissenting) (“Case law within this jurisdiction demonstrates that animals may be the subject of bailments.”).

[FN12]. See, e.g., Key v. Bagen, 221 S.E.2d 234, 235 (Ga. Ct. App. 1975) (holding that the transaction for the sale of a horse falls under the U.C.C.); Sease v. Taylor's Pets, Inc., 700 P.2d 1054 (Or. Ct. App. 1985) (holding that live skunk purchased as a pet is a “product” under products liability law when it causes harm to human).

[FN13]. Amy Blount Achor, Animal Rights: A Beginner's Guide 5 (1996). The term living organism is used here as a general term that encompasses many segments of the animal kingdom. Whether a specific living organism in the broader taxonomical classification structure possesses sentience is a matter for debate elsewhere.

[FN14]. Robert Wright, Are Animals People, Too?, The New Republic, Mar. 20, 1990, at 20. In an interview with Mr. Wright, an interviewee opined that “[y]ou and I are equal to the lobsters when it comes to being boiled alive!” Id.

[FN15]. Achor, supra note 13, at 5-6. As far back as ancient ecclesiastical law and early English law, civilized society punished those who harmed others. Ronald N. Boyce & Rollin M. Perkins, Criminal Law and Procedure 358 (8th ed. 1999); Victor E. Schwartz et al., Prosser, Wade and Schwartz's Torts 2-6 (10th ed. 2000).

[FN16]. Waisman et al., supra note 5, at 399.

[FN17]. Id. For a nice overview and summary of state anti-cruelty statutes, see id. at 399-401.

[FN18]. See Desanctis v. Pritchard, 803 A.2d 230, 232 (Pa. Super. Ct. 2002). See also supra note 5 and accompanying text.

[FN19]. See In re Estate of Searight, 95 N.E.2d 779, 784 (Ohio Ct. App. 1950) (court upheld testator's will provision that ordered $1,000 honorary trust to be established for the care of his dog, Trixie).

[FN20]. See Burgess v. Taylor, 44 S.W.3d 806 (Ky. Ct. App. 2001). The court affirmed trial court's award of $125,000 compensatory and punitive damages above the economic value of the horses for the tort of outrageous conduct where the plaintiff, who was suffering from myasthenia gravis, had owned and loved her two horses like children for fourteen years. Burgess, 44 S.W.3d at 809-10. When she could no longer care for them, she believed she was finding a good home for them under an equine free-lease agreement with defendant. Id. at 809. The defendant assured the plaintiff that her beloved horses were doing fine, but all the while defendant sold the horses to a known horse-slaughtering market. Id. When the plaintiff intuitively sensed that something was wrong and panicked at not being able to locate her horses, the defendants continued to lie and cover up the horses' location as the plaintiff cried, begged, and pleaded for their lives. Id. at 812. Upon discovering the truth of their slaughter, plaintiff suffered severe emotional distress and sought medical help. Id.

[FN21]. See, e.g., Rebecca J. Huss, Separation, Custody, and Estate Planning Issues Relating to Companion Animals, 74 U. Colo. L. Rev 181 (2003); Rebecca J. Huss, Valuing Man's and Woman's Best Friend: The Moral and Legal Status of Companion Animals, 86 Marq. L. Rev. 47 (2002); Mary Margaret McEachern Nunalee & G. Robert Weedon, Modern Trends in Veterinary Malpractice: How our Evolving Attitudes Toward Non-Human Animals will Change Veterinary Medicine, 10 Animal L. 125 (2004); Sonia S. Waisman & Barbara R. Newell, Recovery of “Non-Economic Damages” for Wrongful Killing or Injury of Companion Animals: A Judicial and Legislative Trend, 7 Animal L. 45 (2001); Steven M. Wise, Animal Thing to Animal Person--Thoughts on Time, Place, and Theories, 5 Animal L. 61 (1999). See also Waisman et al., supra note 5, at 73-98 for a comprehensive summary and additional resources for the animals-as-property issue and legal reform.

[FN22]. 277 N.E.2d 230 (Ohio Ct. App. 1971).

[FN23]. Southall, 277 N.E.2d at 232. See also Waisman et al., supra note 5, at 148, for more jurisdictions declining to apply a veterinary malpractice standard.

[FN24]. 680 A.2d 1149, 1154 (Pa. 1996) (Castille, J., dissenting).

[FN25]. Id. at 1155.

[FN26]. See id. at 1152 (majority opinion) (“Similar to the practice of law or medicine, the vocation of veterinary medicine involves specialized education, knowledge, and skills.”). See also the admission and degree requirements at the University of Pennsylvania School of Veterinary Medicine, available at www.vet.upenn.edu (last visited Feb. 13, 2007), and at Cornell College of Veterinary Medicine, available at www.vet.cornell.edu (last visited Feb. 13, 2007).

[FN27]. 89 Cal. Rptr. 2d 868 (1999).

[FN28]. Id. at 872.

[FN29]. Waisman et al., supra note 5, at 146.

[FN30]. Price, 680 A.2d. at 1152. In this case, the plaintiff brought a breach of bailment action when her dog died while in the veterinarian's kennel following surgery. The court's majority held that no bailment action could lie because veterinarians are not like boarding kennels in that a person takes their companion animal to a veterinarian for the different, specialized purpose of surgery and medical practice, unlike a boarding kennel. The majority held that the proper cause of action is veterinary malpractice. The dissent, however, resurrected good arguments that bailment theory properly fits with animals-as-property claims, even when leaving the animal with the veterinarian. See generally Price, 680 A.2d. at 1153 (discussing the application of the bailment theory to animals).

[FN31]. 63 Pa. Stat. Ann. §§ 485.1 to 485.35 (West 1996); Act of Dec. 27, 1974, P.L. 995, No. 326.

[FN32]. Act of Dec. 9, 2002, P.L. 1370, No. 167; Act of May 9, 1986, P.L. 166, No. 54.

[FN33]. See 63 Pa. Stat. Ann. §§ 485.1 to 485.35 (West 1996).

[FN34]. Id. § 485.4(a). “There is hereby established within the Department of State the State Board of Veterinary Medicine.” Id. “The board may: (1) Adopt reasonable rules and regulations governing the practice of veterinary medicine as are necessary to enable it to carry out and make effective the purpose and intent of this statutory law.” Id. § 485.5(1).

[FN35]. 863 A.2d 129 (Pa. Commw. Ct. 2004).

[FN36]. Nelson, 863 A.2d at 130. Unless otherwise stated or quoted within, all facts and procedural history are taken from this case.

[FN37]. Id.

[FN38]. Nelson, 863 A.2d at 131.

[FN39]. Id.

[FN40]. Id.

[FN41]. Id.

[FN42]. Id. Dr. Nelson later acknowledged to the State Board of Veterinary Medicine that he is “not somebody who is real diplomatic” Id. at 131 n.3.

[FN43]. Nelson, 863 A.2d at 131. See also 63 Pa. Stat. Ann. §§ 485.1 to 485.35 (West 1996).

[FN44]. Nelson, 863 A.2d at 131. See 63 Pa. Stat. Ann. § 485.21(11) (West 1996). The statute states that:
The board shall suspend or revoke any license or certificate or otherwise discipline an applicant, licensee or certificate holder who is found guilty by the board or by a court of one or more of the following: ... (11) Incompetence, gross negligence or other malpractice, or the departure from, or failure to conform to, the standards of acceptable and prevailing veterinary medical practice, in which case actual injury need not be established.
63 Pa. Stat. Ann. § 485.21(11) (emphasis added).

[FN45]. Nelson, 863 A.2d at 131. See 63 Pa. Stat. Ann. § 485.21(20) (West 1996). The statute states that: “The board shall suspend or revoke any license or certificate or otherwise discipline an applicant, licensee or certificate holder who is found guilty by the board or by a court of one or more of the following: ... (20) Professional incompetence.” Id. § 485.21(20) (emphasis added).

[FN46]. Nelson, 863 A.2d at 131-32.

[FN47]. Id. at 132.

[FN48]. Id.

[FN49]. Id.; 63 Pa. Stat. Ann. § 485.5(10) (West 1996). The statute states that: “The board may: ... (10) Conduct investigations and hearings upon complaints calling for discipline of a licensee.” Id. § 485.5(10).

[FN50]. Nelson, 863 A.2d at 132. Note that the Department did not charge Dr. Nelson with mistreatment of the patient animal, but it charged Dr. Nelson with mistreatment of the client owner. Id. Note also that mistreatment of the patient animal was briefly addressed by a Board member, Dr. Orsini, when he “questioned Dr. Nelson about the technical aspects of the” euthanasia during the later hearing before the Board. Id. at 132 n.5. The opinion is unclear why the Board did not proceed with this allegation of patient malpractice.

[FN51]. Id. at 132.

[FN52]. Nelson, 863 A.2d at 132.

[FN53]. Id. “Any person aggrieved by an adjudication of a Commonwealth agency who has a direct interest in such adjudication shall have the right to appeal therefrom to the court vested with jurisdiction of such appeals by or pursuant to Title 42 (relating to judiciary and judicial procedure).” 2 Pa. Cons. Stat. Ann. § 702 (West 1995).

[FN54]. Nelson, 863 A.2d at 132 n.4 (citing 2 Pa. Cons. Stat. Ann. § 704 (West 1995)).

[FN55]. Id. at 132, 139 n.21.

[FN56]. Id. at 132.

[FN57]. Id.

[FN58]. Id. at 133 (quoting 63 Pa. Stat. Ann. § 485.3(9)-(10) (West 1996) (defining “veterinary medicine” and “practice of veterinary medicine”)).

[FN59]. Id. at 134 (quoting 63 Pa. Stat. Ann. § 485.3(15) (West Supp. 2006) (defining “veterinarian-client-patient relationship”)).

[FN60]. Nelson, 863 A.2d at 134.

[FN61]. Id. at 133-39.

[FN62]. Id. at 135 (citing Commonwealth v. Gilmour Mfg. Co., 822 A.2d 767, 679 (Pa. 2003)).

[FN63]. Id. at 135 n.10 (citing C.B. ex rel. R.R.M. v. Commonwealth, Dep't of Pub. Welfare, 786 A.2d 176, 180-81 (Pa. 2001)).

[FN64]. Id. at 135.

[FN65]. Id.

[FN66]. Id.

[FN67]. Id. (citing 1 Pa. Cons. Stat. Ann. § 1903 (West 1995) and 1 Pa. Cons. Stat. Ann. § 1921(a) (1995), respectively).

[FN68]. 839 A.2d 1173 (Pa. Commw. Ct. 2003). The court in Nelson declined to focus its attention on Klimek, saying that its opinion about professional incompetence in Klimek was, at most, dictum. Nelson, 863 A.2d at 136.

[FN69]. Nelson, 863 A.2d at 136-37 (citing Reich v. Reading, 284 A.2d 315, 319 (Pa. Commw. Ct. 1971), Black's Law Dictionary 1246 (8th ed. 1999), and Webster's Third International Dictionary (2002) for its definition of “professional”; citing Chaby v. Commonwealth, State Bd. of Optometrical Exam'rs, 386 A.2d 1071, 1074 (Pa. Commw. Ct. 1978) and Webster's Third New International Dictionary (1966) for its definition of “gross incompetency”; and citing Ciavarelli v. Commonwealth, State Bd. of Funeral Dirs., 565 A.2d 520 (Pa. Commw. Ct. 1989) for its treatment of “incompetence” and “gross misconduct.”).

[FN70]. Id. at 137.

[FN71]. Id. at 137 n.15.

[FN72]. Id. at 137.

[FN73]. 49 Pa. Code § 31.21 (2006).

[FN74]. Nelson, 863 A.2d at 138 n.17.

[FN75]. Id. at 138-39.

[FN76]. Nelson, 863 A.2d at 138.

[FN77]. Id.

[FN78]. Id. at 139.

[FN79]. Id. at 132.

[FN80]. Id. at 139 n.21.

[FN81]. Gary Lawson, Federal Administrative Law 457 (3d ed. 2004).

[FN82]. 467 U.S. 837, 842-43 (1984).

[FN83]. Id. at 842-43.

[FN84]. Nelson, 863 A.2d at 842-43.

[FN85]. Id. at 135.

[FN86]. 792 A.2d 636 (Pa. Commw. Ct. 2002).

[FN87]. Id. at 660 (citing Tool Sales & Serv. Co. v. Commonwealth, Bd. of Fin. & Revenue, 637 A.2d 607, 613 (1993)).

[FN88]. Arippa, 792 A.2d at 660 (emphasis added). In this case, the court was comparing rulemaking and adjudicative powers to other types of decisions the agency in this case was rendering. Id.

[FN89]. 49 Pa. Code § 31.21 (2006) (emphasis added).

[FN90]. Consider for example the regulation of lawyers. In addition to the Model Rules of Professional Conduct, the PBA Working Rules for Professionalism attempt to guide personal behavior. The working rules state that people should “[t]reat with civility the lawyers, clients, opposing parties, the Court, and all the officials with whom we work. Professional courtesy is compatible with vigorous advocacy and zealous representation.” Professionalism Committee, PBA Working Rules for Professionalism, Rule 1, available at http:// www.pabar.org/public/committees/proflism/about/pbaworkingrules.asp (last visited Feb. 13, 2007).

[FN91]. Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). See also Gary Lawson, Federal Administrative Law 458 (3d ed. 2004) (discussing the Chevron two-step test for agency deference).

[FN92]. Chevron, 467 U.S. at 844.

[FN93]. 63 Pa. Stat. Ann. § 485.2 (West 2001). “[T]o protect the public from being misled by incompetent, unscrupulous, and unauthorized persons from unprofessional or illegal practices by persons licensed to practice veterinary medicine.” Id. (emphasis added).

[FN94]. Ciavarelli v. Commonwealth, State Bd. of Funeral Dirs., 565 A.2d 520, 523 (Pa. Commw. Ct. 1989); Chaby v. Commonwealth, State Bd. of Optometrical Exam'rs, 386 A.2d 1071, 1073 (Pa. Commw. Ct. 1978).

[FN95]. See Nelson v. State Bd. of Veterinary Med., 863 A.2d 129, 137 n.14 (Pa. 2004).

[FN96]. Act of Dec. 27, 1974, P.L. 995, No. 326.

[FN97]. See H.B. 1276, Printer's No. 3312, Session of 1973, at 11.

[FN98]. Act of May 9, 1986, P.L. 166, No. 54.

[FN99]. See H.B. 1646, Printer's No. 3356, Session of 1985, at 17.

[FN100]. Passed and signed as Act of May 9, 1986, P.L. 166, No. 54.

[FN101]. Remarks, House Legislative Journal, Nov. 26, 1985, at 2219-26.

[FN102]. 63 Pa. Stat. Ann. § 485.21(8)-(9) (West 1996).

[FN103]. Id. § 485.3(9) (“‘Veterinary medicine’ means that branch of medicine which deals with the diagnosis, prognosis, treatment, administration, prescription, operation or manipulation ...”) (emphasis added).

[FN104]. 63 Pa. Stat. Ann. § 485.3(10) (West 1996) (“‘Practice of veterinary medicine’ includes, but is not limited to, the practice by any person who ... (ix) renders advice or recommendation by any means ...”).

[FN105]. Nelson v. State Bd. of Veterinary Med., 863 A.2d 129, 133 (Pa. 2004).

[FN106]. Id. at 138.



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