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Appeal of Brown

Supreme Court of New Hampshire

November 1, 2018

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

          Argued: October 11, 2018

         Board of Veterinary Medicine

          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 (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 ยง IV (2016) ("A veterinarian shall respect the law," which means that he or she ...


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