J. STEVEN STAFFORD, JUDGE.
This is an appeal from an administrative decision against Appellant, a licensed veterinarian. Appellee Board of Veterinary Medical Examiners sanctioned Appellant for improperly prescribing medications to farms. Appellant appeals. Discerning no error, we affirm.
Petitioner/Appellant Kevin Cox, D.V.M. (Dr. Cox) is a large animal veterinarian licensed to practice in Tennessee. Respondent/Appellee, the Board of Veterinary Medical Examiners ("the Board") is a regulatory board operating within the Division of Health Related Boards of the Tennessee Department of Health. The Board is responsible for the regulation and supervision of the practice of veterinary medicine throughout Tennessee.
Dr. Cox lives in western Tennessee and works as the staff veterinarian for Tennessee Farmer's Cooperative ("the Cooperative").
In his work with Co-Op Vet Health, Dr. Cox has some 187 patients/clients ranging from far western Tennessee to extreme eastern Tennessee. According to Dr. Cox, he provides his Co-Op Vet Health clients with advice and information regarding over-the-counter and prescription medications, as well as animal health. However, Dr. Cox does not provide emergency services to his clients, and recommends that they keep an emergency veterinarian on call. Through his services with Co-Op Vet Health, Dr. Cox also gives his clients a printed list of common medications that he might prescribe, including their prices.
After operating Co-Op Vet Health for a few months, on March 25, 2005, Dr. Cox received complaints from unidentified persons, indicating that he was operating his practice in an unethical manner. Dr. Cox subsequently wrote to the Board to determine whether he was operating within the confines of the law. An agent for the Board wrote back to Dr. Cox, pointing out several relevant rules and regulations concerning his practice, and informing him that the Board could only determine the propriety of his practice should he petition for a Declaratory Order. Dr. Cox never petitioned for a Declaratory Order and continued to operate Co-Op Vet Health without any significant changes.
On November 3, 2005, only nine months after forming Co-Op Vet Health, the Board issued a Notice of Charges and Memorandum of Assessment of Civil Penalties and Costs against Dr. Cox alleging six violations of the rules and laws governing veterinarians. The Notice alleged that Dr. Cox visited a particular farm in May 2005 and made arrangements to provide prescription medications to the farmer without examining any of the animals on the farm, and that this incident evidences a practice to prescribe medications without forming a proper veterinarian-client-patient relationship.
It eventually came to light that the charges against Dr. Cox were filed by another veterinarian, Dr. Oscar Wilson (Dr. Wilson). These charges concerned Dr. Cox's conduct at Beatyview Farm, which is owned by Julius Beaty. According to Dr. Wilson, he learned, through Mr. Beaty's sons, that Dr. Cox had gone to the Beaty farm and had prescribed medications for the animals without examining any animals or the herd and without taking other steps to create a proper veterinarian-patient-client relationship.
Prior to the hearing on the charges, Dr. Wilson sought to withdraw his complaint against Dr. Cox; nevertheless, the Board continued with the proceedings against Dr. Cox. On June 23, 2006, the State sought to compel Dr. Cox to provide the State with twenty-one of Dr. Cox's client-patient records. After first agreeing to provide the State access to eleven client-patient records, Dr. Cox later objected based on the fact that Dr. Wilson had withdrawn his complaint regarding Beatyview Farm and that Dr. Cox was not charged with record-keeping violations in the Notice of Charges. The State renewed its motion to compel discovery on August 1, 2006. On August 8, 2006, the Administrative Law Judge ("ALJ") ordered Dr. Cox to produce twenty-one client-patient records stating that;
The ALJ held a contested hearing on January 30-31, 2007. During the proceedings, the ALJ directed the Board as follows:
Dr. Wilson first testified regarding his original complaint. Dr. Wilson stated that he was led to believe that Dr. Cox went to the Beaty farm and prescribed certain medications without examining any of the animals. Dr. Wilson also testified that, in a phone call that Dr. Wilson made to Dr. Cox, Dr. Cox indicated that the only thing he would need to prescribe medications to Dr. Wilson was an address.
Mr. Beaty did not testify; instead, his testimony was introduced through an affidavit.
Dr. Cox testified that he always forms the proper veterinarian-client-patient relationship prior to prescribing medications. Producers who used Dr. Cox's veterinary services testified that Dr. Cox did not prescribe medications without speaking at length with the persons who would administer the drugs. They also testified that compared to other large animal veterinarians, Dr. Cox was even more reticent about prescribing medications. Betty Woods, a long-time client of Dr. Cox's, testified that Dr. Cox came to her farm prior to prescribing medications, looked over her herd, and physically examined a number of animals. Amy Maness, one of Dr. Cox's clients, testified that Dr. Cox was readily available for follow-up care, would come out to her farm if needed, and physically examined her sick animals on three occasions.
The State called several practicing veterinarians who testified that, in their expert opinions, Dr. Cox did not establish a proper veterinarian-client-patient relationship prior to prescribing medications to his farm clients. These witnesses' opinions were formed after they examined Dr. Cox's patient records. Specifically, the experts were concerned by the fact that Dr. Cox: (1) handed out the price list to clients, which implied that medications could be obtained with just a phone call; (2) often had no notation in his records of ever having examined animals or herds prior to prescribing medications; (3) sometimes prescribed medications prior to visiting farms; (4) was unavailable for the required follow-up and emergency care needed when prescribing pharmaceuticals due to the vast territory of his practice; (5) had notations in his records indicating that prescriptions could be refilled as needed; and (6) failed to follow the recommendations of the American Veterinary Medical Association ("AVMA"), a voluntary membership association.
Dr. Cox presented his own expert, who agreed that the notations in Dr. Cox's records were not sufficient to show a proper veterinarian-patient-client relationship.
At the conclusion of proof on January 31, 2007, the Board found that Dr. Cox violated all six of the rules and regulations he had been charged with violating. On March 29, 2007, the Board entered a final order memorializing the earlier findings. The order included the required findings of fact, conclusions of law and policy reasons behind the decision, and generally incorporated the factual allegations as set out in the Notice of Charges.
On May 22, 2007 Dr. Cox filed a petition for judicial review in Chancery Court.
Dr. Cox properly appealed to this Court.
Dr. Cox raises the following issues for review:
1. Was the Board's finding that Appellant failed to maintain a proper veterinarian-client-patient relationship supported by evidence that was substantial and material in light of the entire record?
2. Was the Board's decision arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion?
This is a case seeking to overturn the final decision in a contested case proceeding under the Uniform Administrative Procedures Act; accordingly, the standard of review is determined by statute. Specifically, the statute provides, in pertinent part:
Tenn. Code Ann. §4-5-322.
This Court discussed the standards of review for Tenn. Code Ann. §4-5-322(h)(4) and (5) with specificity in
A reviewing court should not apply Tenn. Code Ann. § 4-5-322(h)(4)'s "arbitrary and capricious" standard of review mechanically. In its broadest sense, the standard requires the court to determine whether the administrative agency has made a clear error in judgment. An arbitrary decision is one that is not based on any course of reasoning or exercise of judgment, or one that disregards the facts or circumstances of the case without some basis that would lead a reasonable person to reach the same conclusion.
Dr. Cox's first argument is that the Board's decision was not based on evidence that was substantial and material in light of the entire record. An agency's decision is supported by substantial and material evidence even if the evidence could support another conclusion. See
As a preliminary matter, we note that the board members were not entitled to determine whether Dr. Cox violated the laws and rules governing veterinary practice based solely on their own experience and expertise, despite the fact that many Board members are veterinarians. "Findings of fact shall be based exclusively upon the evidence of record in the adjudicative proceeding and on matters officially noticed in that proceeding. The agency member's experience, technical competence and specialized knowledge may be utilized in the evaluation of evidence." Tenn. Code Ann. §4-5-314(d). Expert testimony is a valid and important form of evidence in administrative proceedings charging a violation of a professional standard of care, and as such the Board is entitled to rely on such evidence.
In support of his argument that the decision was not supported by substantial and material evidence, Dr. Cox contends that the Board erroneously based its decision solely on his veterinary records. Dr. Cox bases his argument on the fact that the ALJ directed the Board that any record-keeping violations should not be considered in determining whether Dr. Cox was guilty of violating the rules and regulations set out in the Notice of Charges. This argument is without merit. The ALJ advised the Board that they could not consider record-keeping violations in determining whether to sanction Dr. Cox, but did not go so far as to state that the Board could not consider the records. The guiding standard for the admission of evidence in administrative proceedings is included in Tennessee Code Annotated Section 4-5-313. The statute states:
In contested cases:
Tenn. Code Ann. §4-5-313. Dr. Cox makes no argument that the disputed evidence would not be admissible in a court, only that the ALJ directed the Board to disregard the record-keeping violations. The ALJ, however, allowed the evidence to be admitted and did not direct the Board to completely disregard the records, only any record-keeping violations that might be evident. The evidence is relevant and material, and as such was properly considered by the Board.
Turning to each of the six violations, we conclude that the evidence was material and substantial and affirm the Board's decision.
Dr. Cox's first violation concerns prescribing medications. The relevant regulation states:
Tenn. Comp. R. & Regs. 1730-01-.02(3).
The Board relied on the fact that, in a majority of Dr. Cox's records there was no indication that Dr. Cox had ever physically examined any animals prior to prescribing medications. Indeed, many of Dr. Cox's own witnesses confirmed that Dr. Cox would prescribe medications for an animal without first examining it, or, in some cases, any animals on the farm at all. Based on this evidence, we conclude that there was material and substantial evidence to support the Board's finding with regard to this violation.
The Board found that Dr. Cox was also in violation of the Tennessee Veterinary Practice Act of 1967. The act states, in pertinent part:
Tenn. Code Ann. § 63-12-124(a) (2011).
The Board found that Dr. Cox's practice of prescribing medications to farms without physically examining any animals on the farm constituted three violations of the Act, under sections (12), (13), and (28); according to the Board, the practice was unethical, reflected unfavorably on the profession of veterinary medicine, and was not in the course of accepted veterinary practice. Given that Tennessee Rule and Regulation 1730-01-.02(3)(b) provides that a violation of the regulation requiring physical examination, as discussed above, will also " be a prima facie violation of T.C.A. § 63-12-124 (a) (12), (13) and (28)," we conclude that there was reasonably sound factual evidence to support the three violations of this statute.
The Board also found that Dr. Cox violated Tennessee Rule and Regulation 1730-01-.13, which provides that "Unprofessional conduct shall include but not be limited to the following: . . . (13) [a]ny violation of T.C.A. §63-12-124." Because we conclude that the Board was justified in finding the three violations of Tennessee Code Annotated Section 63-12-124, we affirm the Board's decision with regard to this violation as well.
Finally, the Board found that Dr. Cox violated the regulation that governed distribution of prescription medications. The regulation provides, in pertinent part:
Distribution of Veterinary Prescription Drugs.
3. The veterinarian is routinely and physically available for follow-up in case of adverse reactions or failure of the treatment or regimen or therapy, or has arranged for substitute follow-up care.
The Board concluded that Dr. Cox did not form the appropriate veterinarian-client-patient relationship because his failure to examine any animals or to make appropriate and timely visits to his clients meant that he did not have "sufficient knowledge of the animal(s). . . to initiate at least a general or preliminary diagnosis of the medical condition of the animal(s)" and that he was unavailable for the appropriate follow-up care due to the vast territory of his practice.
Dr. Cox argues, however, that the Board's requirement that he physically examine the animals and provide follow-up care more than bi-annually is without support in the regulation, and as such, to quote Dr. Cox's brief, "hold[s] Dr. Cox to a more `ideal' standard than what is in the Rule." Dr. Cox relies on the recent Tennessee Court of Appeals case of
2 Admin. L. & Prac. § 5:64 (3d ed.) (quoting
Experts from the State testified that Dr. Cox's practice of looking over a herd, without examining the animals, was not enough to gain a sufficient knowledge of the animals in order to prescribe medications. Even though Dr. Cox's expert testified that examining animals was not always required, he did state that he would prescribe without an examination only if he was very familiar with the farm and that the level of involvement Dr. Cox had with his patients, as reflected in his records, was below the standard of care. Indeed, in our review of Dr. Cox's records and the testimony of Dr. Cox's clients, we conclude that, in general, the level of actual involvement (not merely phone conversations) reflected in the records is substantially similar to the level of involvement testified to by the witnesses. Therefore, we conclude that there was sufficient evidence to support the Board's decision with regard to this violation.
Dr. Cox also argues that the decision of the Board was arbitrary or capricious or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. An agency's decision is arbitrary or capricious if it lacks any rational basis. See
Dr. Cox first argues that he was not provided sufficient notice in the Notice of Charges that he could be sanctioned for violations that did not concern Beatyview Farm. "In context of administrative hearing process, basic due process requires notice reasonably calculated under all circumstances to apprise interested parties of claims of opposing parties."
Here, the Notice of Charges specifically states that it concerns both Dr Cox's "regular activities" in prescribing medications and his actions in "the course of his employment." Therefore, he was on notice that the charges concerned his practice as a whole rather than simply the complaint regarding Beatyview Farm. While the Notice of Charges did state that it pertained to Dr. Cox's ongoing activities for the Cooperative, rather than Co-Op Vet Health, Co-Op Vet Health is a subsidiary of the Cooperative and the allegations in the Notice gave Dr. Cox adequate notice that he would need to prepare a defense for his regular prescribing activities. Indeed, Dr. Cox's records had been the subject of a prior motion to compel by the State. At that time, Dr. Cox argued that the records were not relevant because the original complaint against him had been withdrawn and the Notice of Charges only notified him that he needed to defend the allegations concerning Beatyview Farm. Nearly six months prior to the hearing, however, the ALJ permitted the discovery of the records, ruling that the records were evidence of his alleged ongoing inappropriate practices, as detailed in the Notice of Charges. Therefore, Dr. Cox was clearly on notice that his records and his ongoing inappropriate prescribing practice were at issue in the contested hearing. As this error did not affect Dr. Cox's ability to prepare his defense and did not affect the merits of the case, we will not reverse the decision of the Board. See Tenn. Code Ann. §4-5-322 ("No agency decision pursuant to a hearing in a contested case shall be reversed, remanded or modified by the reviewing court unless for errors that affect the merits of such decision.").
Dr. Cox also argues that the Board's reliance on his records was error as the Notice of Charges did not allege any record-keeping violations. However, the very regulations that Dr. Cox is charged with violating in the Notice of Charges contain requirements that place Dr. Cox's records at issue. See Tenn. Comp. R. & Regs. 1730-01-.02(3) (directing the Board to consider whether a physical examination was "first done and appropriately documented" in order to determine whether medications were appropriately prescribed) (emphasis added). Therefore, the Board had a rational basis for concluding that the Notice of Charges informed Dr. Cox that his records could be considered relevant evidence of the charges.
Dr. Cox next argues that the Board's large animal veterinarians were biased against him because they are competitors. This argument is likewise without merit. Tennessee Code Annotated Section 4-5-302(b) states that "[a]ny party may petition for the disqualification of an administrative judge, hearing officer or agency member promptly after receipt of notice indicating that the individual will serve or, if later, promptly upon discovering facts establishing grounds for disqualification." See also
Even if this argument had been properly introduced in the agency proceedings, Dr. Cox failed to present any evidence that the large animal veterinarians were biased in this case other than the broad allegation that they are competitors with Dr. Cox. More than base allegations are needed to overcome the presumption that board members perform their duties in good faith. See
Dr. Cox finally argues that there was insufficient proof that Dr. Cox's violations were knowing and deliberate as required in order to impose Type A sanctions. "Because the appropriate remedy is peculiarly within the discretion of the agency, we will only review whether the remedy is `unwarranted in law' or `without justification in fact.'"
The decisions of the Board of Veterinary Medical Examiners and the Chancery Court are affirmed and this cause is remanded for the appropriate imposition of sanctions. Costs of this appeal are taxed to Appellant, Kevin Cox D.V.M., and his surety.
The State did not object to the admission of Mr. Beaty's affidavit.
Schedule of Civil Penalties
Tenn. Comp. R. & Regs. 1730-01-.15(5)(b).
Tenn. Comp. R. & Regs. 1730-01-.15(2).
When an individual is at risk of being punished more than once for the same conduct, the Double Jeopardy Clause of the United States Constitution is at issue. See U.S. Const. amend. V ("[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb . . ."). Double Jeopardy may apply in administrative proceedings when the purpose of the sanction is punitive rather than remedial. See Cutshall v. Sundquist, 193 F.3d 466, 473 (6
