APPEAL OF SANDRA BROWN, DVM (New Hampshire Board of Veterinary Medicine)
Argued: October 11, 2018
of Veterinary Medicine
Steiner Law Office, PLLC, of Concord (R. James Steiner and
Michael A. Chen on the brief, and Mr. Steiner orally), for
J. MacDonald, attorney general (Thomas Broderick, assistant
attorney general, on the brief and orally), for 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.
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.
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).
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).
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.
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).
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."
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,
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 ...