In re Brown

171 N.H. 468

198 A.3d 276

APPEAL OF Sandra BROWN, DVM (New Hampshire Board of Veterinary Medicine)

No. 2017-0729

Supreme Court of New Hampshire.

Argued: October 11, 2018

Opinion Issued: November 1, 2018

Steiner Law Office, PLLC, of Concord (R. James Steiner and Michael A. Chen on the brief, and Mr. Steiner orally), for the petitioner.

Gordon J. MacDonald, attorney general (Thomas Broderick, assistant attorney general, on the brief and orally), for the respondent.

HICKS, J.

The petitioner, Sandra Brown, DVM, appeals an October 2017 decision by the respondent, the New Hampshire Board of Veterinary Medicine (Board), suspending her license to practice veterinary medicine for six months and further prohibiting her, following the six-month suspension and until December 31, 2021, from dispensing, possessing, or administering controlled substances (other than euthanasia solution) in her practice. On appeal, she argues that the Board lacked subject matter jurisdiction to discipline her for violating the Controlled Drug Act, see RSA ch. 318-B (2017 & Supp. 2017), because the Board is not one of the agencies statutorily authorized to enforce that act. She also asserts that the Board lacked jurisdiction to subject her practice to post-hearing inspections.

Although the petitioner makes other appellate arguments, we decline to address them substantively. Those arguments are not properly before us because, to the extent that the petitioner raised them before the Board, she did so, for the first time, in an untimely motion for reconsideration, which is insufficient to preserve them for our review. See RSA 541:3, :4 (2007); cf. In the Matter of Sweatt & Sweatt, 170 N.H. 414, 424, 173 A.3d 1080 (2017) (concluding that, "because the respondent did not raise [his appellate] arguments in the trial court or in a timely motion for reconsideration, they are not preserved for our review"). We affirm.

The Board found, or the certified record supports, the following facts. In May and June of 2013, the Board received complaints from two of the petitioner's former employees alleging, among other things, that she improperly managed medication and equipment. After investigating the complaints, the Board commenced an adjudicatory proceeding. See RSA 332-B:15 (2017). Based upon the evidence at the hearing, the Board determined that the petitioner had committed professional misconduct within the meaning of RSA 332-B:14, II(d) (2017) because she had "engaged in a pattern of conduct inconsistent with the basic skills and knowledge required to practice veterinary medicine." The Board decided that, despite the instances of misconduct, it would not suspend or revoke the petitioner's license, but would, instead "impos[e] a series of remedial measures designed to improve [her] overall medical knowledge and competence." As a result, the Board ordered that the petitioner's "practice [would] be subject to [B]oard inspections, which [might] be announced or unannounced, for a period of four ... years" from the Board's September 2015 decision. Such inspections would include examining the petitioner's records as well as reviewing her "hospital[,] surgical[,] ... medical[,] ... [and] management practices." Documents in the certified record suggest that the petitioner may have signed a settlement agreement with the Board in which she agreed to the inspections. See RSA 332-B:14, IV, :16, V (2017) (authorizing the Board to dispose of allegations by entering into a settlement agreement or consent order).

The Board inspected the petitioner's practice in May, September, and December 2016. The Board of Pharmacy, on behalf of the Board, inspected her practice in October 2016. See RSA 318:9-a (2015). As a result of the findings from those inspections, the Board commenced another adjudicatory proceeding against the petitioner. See RSA 332-B:15. Following a hearing, the Board found that she had committed professional misconduct within the meaning of RSA 332-B:14, II (2017).

Specifically, the Board found that the petitioner had continually and willfully prescribed and used expired medications, even after having been notified not to do so. See RSA 332-B:14, II(d). The Board determined that doing so was "dangerous as expired medications can develop increased potency, decreased potency, or become toxic." The Board found that the petitioner's conduct was willful, observing that she had "[gone] so far as to make a waiver to justify the use of expired medication." See id.

Additionally, the Board found that the petitioner "consistently showed a nonchalant attitude towards the multiple investigations and hearings" and that she failed to "take remedial corrective measure[s] in a timely fashion" after prior investigations had brought problems to her attention. See RSA 332-B:14, II(g).

The Board further found that the petitioner failed "to keep" her "veterinary premises and equipment in a safe, clean, and sanitary condition." RSA 332-B:14, II(l ). According to the Board, the petitioner's "mobile [veterinary] unit was ... disorganized, contained expired medications, and there were no actions being taken to maintain an appropriate temperature to store the medication properly."

Also, the Board found that the petitioner's medical record-keeping demonstrated "a continued pattern of not being forthcoming with clients," in that she failed to document discussions with clients about adverse outcomes, including one instance in which her medical error led to the death of an animal in her care. See RSA 332-B:14, II(n).

Finally, the Board found that the petitioner violated RSA 318-B:10, II (2017) by filling prescriptions for schedule IV controlled substances for more than a seven-day supply on multiple occasions, and that she violated RSA 318-B:12, I (2017) by "failing to adequately and accurately keep controlled drug records." The Board "felt that [the petitioner] showed a lack of concern at the seriousness" of the inaccurate controlled drug records. The Board expressed "significant concerns regarding [her] ability to properly prescribe and maintain controlled substances." The Board ruled that the violations of RSA 318-B:10, II and :12, I, constituted "unprofessional conduct" within the meaning of RSA 332-B:14, II(c). See N.H. Admin. R., Vet 501.02 (providing that "[c]onduct which violates the Principles of Veterinary Medical Ethics of the AVMA as revised April 2016" constitutes "unprofessional or dishonorable conduct pursuant to RSA 332-B:14, II(c)"); see also American Veterinary Medical Association, Principles of Veterinary Medical Ethics of the AVMA § IV (2016) ("A veterinarian shall respect the law," which means that he or she "should obey all laws of the jurisdictions in which [he or she] reside[s] and practice[s] veterinary medicine."), available at https://www.avma.org/KB/Policies/Pages/Principles-of-Veterinary-Medical-Ethics-of-the-AVMA.aspx.

Because of this conduct, in addition to suspending the petitioner's veterinary license for six months, the Board ordered that, after the suspension and until December 31, 2021, she would "be limited to practice veterinary medicine without controlled substances, with the exception of euthanasia solution," meaning that she would "be unable to dispense or administer controlled substances" and could not keep such substances (other than euthanasia solution) "on the clinic grounds or in the mobile unit." However, the Board specified that the petitioner would "maintain the ability to prescribe controlled substances via outside pharmacies."

The Board issued its decision on October 3, 2017. Approximately ten days later, the petitioner filed a timely motion for rehearing, see RSA 541:3, in which she admitted that she filled a prescription for a controlled drug for more than a seven-day supply and that her controlled drug logbooks contained inaccuracies. She also admitted to having dispensed expired medications. She stated that she accepted the Board's "limitation on her veterinary license to practice without controlled substances, with the exception of euthanasia," but requested that the restrictions be modified so as to allow her to use Butorphanol. Approximately one month after filing her motion for rehearing, the petitioner requested permission to prescribe controlled drugs and suggested that the Board "appoint a person it deems fit to oversee [her] compliance with controlled drugs." On November 28, 2017, after reviewing the petitioner's motion and supplement thereto as well as the objection filed by hearing counsel, the Board denied the motion, concluding that its decision on the merits contained no errors.

On December 21, 2017, the petitioner filed a second motion for rehearing in which, for the first time, she argued that the Board: (1) lacked authority "to regulate the prescription, storage or dispensing of ... controlled drugs," and, therefore, could not have determined that the petitioner committed misconduct within the meaning of RSA 332-B:14, II(d) by continually prescribing expired medications; (2) violated the petitioner's state and federal constitutional rights to due process by arbitrarily creating a standard of care with respect to the recording of communications with clients; and (3) improperly determined that she violated provisions of the Controlled Drug Act because the Board "is not the administrative or judicial body to oversee, adjudicate, or enforce" that act and, by so doing, infringed upon her due process rights.

On December 27, 2017, the petitioner filed a timely appeal in this court, challenging the Board's October merits decision and its November denial of her first motion for rehearing. The Board denied the petitioner's second motion approximately one month later, on February 8, 2018. The Board "again concluded there were no ... errors of fact, errors of reasoning, or erroneous conclusions" in its October 2017 order on the merits, and observed that the petitioner's second motion for rehearing "was filed well outside" the statutory...