Administrative

Natalie Laflamme
Associate at Sulloway & Hollis in Concord practicing civil litigation
Copyright 2017 Robert C Strong II

No. 2017-0729
Nov. 1, 2018
Affirmed.

  • Whether the Board of Veterinary Medicine had jurisdiction to discipline a veterinarian for violations of the Controlled Drug Act or to subject the veterinarian to post-hearing inspections.

The petitioner, Sandra Brown, DVM, appealed a decision by the New Hampshire Board of Veterinary Medicine (Board) that suspended her license for six months and thereafter prohibited her from dispensing, possessing, or administering most controlled substances for several years.

In 2014, the Board received complaints that the petitioner improperly managed medication and equipment. The Board determined that the petitioner committed professional misconduct by acting inconsistently with the basic skills and knowledge to practice. See RSA 332-B:14, II(d). The Board imposed remedial measures, including inspections of the petitioner’s practice. The record before the Court suggested that the petitioner signed a settlement agreement consenting to the inspections.

After four inspections in 2016, the Board commenced another adjudicatory proceeding against the petitioner and found that she had again committed professional misconduct.  Specifically, she had been willfully prescribing and using expired medications. The Board also found that the petitioner failed to keep her premises and equipment in a safe and clean condition, and failed to keep proper medical records. Further, the Board found that the petitioner violated provisions of RSA 318-B:10 by filling prescriptions for schedule IV controlled substances for more than a seven-day supply and failing to keep accurate records.

The Board suspended her license for six months and ordered that for the next four years thereafter she would not be permitted to keep, dispense, or administer controlled substances (other than euthanasia solution). The petitioner moved for a rehearing. She admitted to the unprofessional conduct but requested that the restrictions placed upon her be modified to allow her to use Butorphanol. She later supplemented the motion, requesting permission to prescribe controlled drugs under the oversight of another person. The Board denied her requests.

The petitioner then filed another motion for a rehearing, arguing, for the first time, that the Board: (1) lacked authority to regulate controlled drugs, and, therefore, could not determine that her prescribing of medication constituted misconduct; (2) violated her due process rights; and (3) improperly determined she violated the Controlled Drug Act because it is not the agency that oversees, adjudicates, or enforces, that Act. This motion was also denied.

On appeal, the petitioner argued that the Board lacked subject matter jurisdiction to discipline her for violating the Controlled Drug Act because authority under that act lies with the Board of Pharmacy. Interpreting the Veterinary Practice Act, RSA 332-B, the Court held that the Board was empowered to discipline licensed veterinarians consistent with the provisions of the statute as well as the rules and regulations authorized by the statute. The Act further allows the Board to discipline for any unprofessional or dishonorable conduct. The Board’s regulations incorporate the principles of the American Veterinary Medical Association’s ethics, which require veterinarians to obey all laws. Following from this, the Court concluded that the Board had subject matter jurisdiction to discipline the petitioner for violating the Controlled Drug Act.  The Court specifically did not define the full scope of the Board’s jurisdiction to discipline a veterinarian for the violation of any law.

The Court also held that the Board had jurisdiction to inspect her practice after her first hearing. The Court relied on the fact that the record suggested that the petitioner agreed, at least implicitly, to the inspections as part of the settlement agreement.  In further support of its holding, the Court recognized that the Board was authorized to discipline a veterinarian by restricting or limiting her license, which includes performing periodic inspections.

 

  1. James Steiner and Michael A. Chen, Steiner Law Office, Concord, for the petitioner. Gordon J. MacDonald, attorney general (Thomas Broderick, assistant attorney general), for the respondent.