Appeal from Superior Court of King County. Docket No: 94-2-32231-1. Date filed: 02/08/96. Judge signing: Hon. Robert J. Wesley.
The opinion of the court was delivered by: Webster
WEBSTER, J. -- After a hearing, the State Veterinary Board of Governors *fn1 suspended Dr. William Inman from the practice of veterinary medicine. Dr. Inman appeals the superior court's affirmance of the Board's order, claiming that (1) the Board does not have legislative authority to discipline veterinarians, (2) the Board relied on facts outside the record under the guise of using its special expertise, (3) the Board did not differentiate an unreasonable risk of harm from a reasonable risk of harm, (4) a Board member's ex parte contacts invalidated the Board's determination regarding fecal test results, (5) the Board's findings of fact are not supported by substantial evidence, (6) the Board denied Inman due process because it found him in violation on offenses for which he was not charged, and (7) the sanctions are arbitrary and capricious. We affirm.
In July 1993, the State charged William Inman, D.V.M., with numerous allegations of unprofessional conduct. Dr. Inman requested a hearing before the State Veterinary Board of Governors. At the Conclusion of the hearing, the State withdrew one of the charges and the Board dismissed several others. The Board found twelve violations, four of which are not at issue on appeal: the failure to keep adequate records; unprofessional conduct in failing to perform a proper work-up on a cat named Mickey; surgery that did not conform to the appropriate standard of care; and misrepresentation to Mickey's owners that veterinary orthopedic manipulations were effective when Dr. Inman should have known they were not.
The violations at issue here break down into three categories:
Lyla's Treatment. Lyla, a dog, was taken to Dr. Inman's clinic following uterine-removal surgery at an emergency clinic for pyometra, a secondary infection of the uterus. The emergency clinic had given Lyla an antibiotic called Ancef through an intravenous catheter tube. Dr. Inman discontinued Ancef, because he determined that the injection site was swollen and plugged, which he attributed to a negative reaction from the Ancef. Instead, he administered Lincocin, another antibiotic. The next morning, before discharging Lyla, Dr. Inman gave her a full range of vaccinations. Upon discharge, he instructed Lyla's owner to give her Prednisone, a steroid, for four days and Lincocin, the antibiotic, for ten days. Several days after the surgery, Lyla's owner called Dr. Inman, complaining that the dog was listless and unable to eat. Although Dr. Inman suggested she bring the dog in, she took Lyla to a different vet. Lyla had a fever, a tender abdomen, and a heart murmur. A specialist later determined that the heart murmur was caused by a bacterial infection.
The Board found four violations related to Dr. Inman's treatment of Lyla. First, it determined that Dr. Inman's choice of Lincocin was not appropriate because Dr. Inman knew that Lyla had just been treated for pyometra. According to medical probabilities, E-coli, a gram-negative (as opposed to gram-positive) bacteria, was the likely cause of the pyometra. Lincocin is not effective against gram-negative bacteria. Thus, administering Lincocin fell beyond the standard of care and created an unreasonable risk of harm.
The Board also determined that dispensing Prednisone to Lyla while she was in a severely compromised condition created an unreasonable risk of harm because small doses of the drug for a short period of time could inhibit her immune system, hindering her ability to recover from the surgery and avoid infection. Moreover, the Board noted that there were no foreseeable positive benefits.
Similarly, the Board determined that vaccinating Lyla when she was in a severely compromised state fell beyond the standard of care because vaccinations cause undue stress and further jeopardize the health status of a dog recovering from major surgery. The Board also determined that the vaccinations would not be effective because Lyla's immune-suppressed condition at the time would not allow her to build an adequate immunity tier. Thus, the board found two violations: (1) creation of an unreasonable risk of harm, and (2) the vaccinations were an inefficacious procedure for Dr. Inman's personal gain, since they would have no effect given Lyla's condition.
Paddles's Treatment. Paddles, a dog, was taken to Dr. Inman's office for dermatological treatment in July 1991. Another veterinarian had diagnosed Paddles with demodectic mange mites (DMM) in February 1991. Dr. Inman diagnosed a different dermatological problem and gave treatments including steroid injections. These treatments would have been contraindicated if Paddles had DMM. Dr. Inman testified that he scraped Paddles to test for DMM on the first visit and several other times and found no DMM. The Board determined, however, that his testimony was not credible because Paddles's check-in sheet for the first visit did not have the "mange scraping" box checked and no indication appeared on the computerized records for the later visits. The Board found that the failure to scrape Paddles prior to steroid administration was unprofessional conduct because it created an unreasonable risk of harm.
Misrepresentation of Fecal Testing Results. Fecal flotation tests are used to determine the presence of tapeworms and other parasites. Dr. Inman's practice was to regularly test his patients and provide tapeworm treatments when the test is positive. Dr. Inman trained his staff to recognize tapeworm eggs with the assistance of a chart published by the veterinary association.
A former employee testified that, after Dr. Inman trained her to identify tapeworm eggs, she found tapeworms in approximately 85 to 95 percent of the samples. Now that she works at a different clinic, she realizes some of her identifications at Dr. Inman's office were actually plant material or pollen rather than tapeworm eggs. Another former employee submitted a written statement that he found about 85 percent of the samples to be positive. It was Dr. Inman's policy to check any negative results. When he did so, he found additional positive results in almost half of the tests initially determined to be negative. A veterinarian who externed with Dr. Inman testified that Dr. Inman once told his staff that 75 percent of the animals should test positive for tapeworms. She never saw tapeworm eggs in samples that Dr. Inman's employees deemed positive, only plant matter.
Dr. Inman testified that he finds tapeworm eggs in approximately 60 percent of the samples. When asked to explain his high percentage of positive fecal tests, he stated that he uses a phase contrast microscope, which is much more powerful than the typical scope used in veterinary offices. He also explained that his staff was able to get better results because they always obtained a fresh fecal sample and tested it exactly fifteen minutes after extraction.
The Board determined that Dr. Inman's statement that 60 percent of his fecal samples tested positive was not true. It noted that four of the five Board members were practicing veterinarians with extensive experience evaluating fecal samples for tapeworms. Those four concurred that less than two percent of fecal samples would test positive for tapeworm on a fecal flotation test. Thus, the Board concluded that Inman trained his staff in a manner that they were bound to misrepresent the results of the tests. The Board found three violations related to this finding: (1) Dr. Inman's representations constituted "misrepresentation" under RCW 18.130.180(13), (2) his misrepresentation of false positive results promoted the necessity and legitimacy of his fecal sampling procedure, violating RCW 18.130.180(16) (promotion for personal gain of unnecessary or inefficacious procedure), and (3) the misrepresentation constituted "moral turpitude" under RCW 18.130.180(1) because it harms members of the public and lowers the standing of the veterinary profession in the public's eye.
Overall, the Board determined that Dr. Inman's conduct, approach to treatment, judgment, and competency are below the standard expected of a Washington veterinarian. Accordingly, it suspended his license for five years, imposed a $10,000 fine, and ordered repayment of fees to Mickey's and Lyla's owners. After one year and sixty days, Dr. Inman can petition the Board for stay of the suspension if he attends a full-time year of study at an accredited veterinary university.
Board hearings are governed by the Washington Administrative Procedure Act (WAPA). RCW 18.130.100. WAPA provides that the appellate court may only grant relief from an agency's order when it violates the constitution, is beyond statutory authority, is not supported by substantial evidence, is arbitrary and capricious, or when the Board employs improper procedures or erroneously interprets or applies the law. RCW 34.05.570(3). The party asserting the invalidity of the Board's action has the burden of proof. RCW 34.05.570(1)(a). The appellate court reviews the Board's record, rather than the trial court's record. Tapper v. Employment Sec. Dep't, 122 Wash. 2d 397, 402, 858 P.2d 494 (1993).
The Board's Authority to Discipline
Dr. Inman first contends that the Board's order is ultra vires because the Board does not have legislative authority to discipline veterinarians. The Uniform Disciplinary Act (UDA) governs the discipline of licensed veterinarians. RCW 18.92.046. That act expressly grants disciplinary authority to the State Veterinary Board. RCW 18.130.040(2)(b)(xiv). Thus, Inman's contention that the Board lacks jurisdiction because ...