SC Administrative Law Court Decisions

STATEMENT OF THE CASE

This matter comes before the Administrative Law Court (ALC) pursuant to a request for an appeal by Dr. James W. Ratliff, III (Appellant). Appellant appeals the decision of the State Board of Veterinary Medical Examiners of South Carolina (Board) to impose a fine of $250 and to grant a public reprimand.

The issue on appeal is whether the Appellant has violated S.C. Code Ann. §40-69-140(12) by negligently practicing veterinary medicine in failing to ensure that vaccines were properly acquired and/or maintained under conditions adequate to safeguard the animals in his care and the public health.

Based on the briefs which were submitted by both parties and oral arguments which were heard in this matter on October 10, 2006, I find that the Order of the Board must be reversed.

STANDARD OF REVIEW

Jurisdiction on appeal is vested in the ALC pursuant to S.C. Code Ann. §§1- 23-600 (Supp. 2004) and 40-69-150 (Supp. 2004). On appeal to the ALC, the standard of review is limited to the record presented. An administrative law judge shall not substitute his judgment for that of an agency unless the agency's determination is affected by error of law or clearly erroneous in view of the reliable, probative and substantial evidence of the whole record. S.C. Code Ann. §1-23-380 (A)(6) (Supp. 2004); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981).

DISCUSSION

This appeal is the result of a hearing which was held by the Board on October 6, 2005. The case involved allegations against two other veterinarians, and all of the charges against the three veterinarians were tried together.[1]

The veterinarians were employed by a mobile pet vaccination clinic known as Pet Vac Express. The clinic operated at parking lots around the state. The only violation found on the part of the Appellant was that he did not adequately ensure that vaccines were properly acquired and/or maintained in violation of the negligence provision of S.C. Code Ann. §40-69-140(12) which states that:[2]

The board may deny, suspend, revoke or restrict the license of a veterinarian or reprimand or discipline a licensee for these reasons:

…(12) engaging in conduct determined by the board to be incompetent or negligent in the practice of veterinary medicine…

By Order dated October 20, 2005, Appellant was found guilty of negligence under this statute. However, this determination is clearly erroneous in view of the substantial evidence of the record. “Substantial evidence, sufficient to support an administrative agency's decision under the Administrative Procedures Act (APA), is not a mere scintilla of evidence nor evidence viewed blindly from one side, but is evidence which, when considering the record as a whole, would allow reasonable minds to reach the conclusion that the agency reached.” Tennis v. South Carolina Department of Social Services, 355 S.C. 551, 585 S.E.2d 312 (S.C. App. 2003). As discussed below, the evidence, when viewing the record as a whole, shows that Appellant ensured that the vaccines were properly maintained even when another party had custody of the vaccines. The record is devoid of any witness testifying to the fact that the vaccines were not properly ordered, stored, or used properly. In fact, two Newberry County officials testified that no concerns or improper procedures were found during their unannounced visit to a clinic in Newberry.

While it is true that the burden is on the appellant(s) to prove convincingly that an administrative agency's decision is unsupported by the evidence, it is clear that Appellant has met this burden. Id at 558. According to the record, Judy Tabor, a non veterinarian who had prior experience in ordering and storing vaccines, was investigated by Appellant before he began working with Pet Vac Express.[3] In the course of his meeting with Ms. Tabor’s previous employer, Dr. Grist, in November of 2002, Appellant found no evidence to suggest that Ms. Tabor had or would improperly order or store vaccines. In fact, Dr. Grist extolled her virtues, and told Appellant that Ms. Tabor had been with him for several years; that she had experience working in a veterinarian hospital in Raleigh; and that she was basically his right hand man or lady. Further, Appellant investigated Ms. Tabor’s storage facilities and found that she adequately stored all vaccines in three separate refrigerators.[4] Upon satisfactory investigation of Ms. Tabor’s background and storage facilities, Appellant began working with Pet Vac Express on February 1, 2003, with the knowledge that Ms. Tabor would initially order and handle the vaccines. Appellant had all of the initial vaccine orders faxed to him so that he could “okay” the Orders. Then, the vaccines were shipped to a UPS delivery site which offered an interior location out of the elements where the vaccines remained until picked up. Id. On the days that the vaccines were to be given to animals in the mobile clinic, they were transported by Ms. Tabor, to the clinic sites, i.e., the parking lots, in coolers that had electrical adapters and also contained ice packs. If vaccines were left over at the end of the day, Appellant took those vaccines with him and placed them in his own refrigerators.[5]

Respondent argues that since the vaccines were not under Appellant’s control at all times, there was no way for Appellant to know whether the vaccines had been properly stored and/or maintained. Respondent specifically relies on Appellant’s following testimony:

Q. If the vaccines had been delivered, and I know they weren’t delivered directly to you, but if they had been delivered and either were at an improper temperature when they were delivered or during the storage, would there have been any way for you to have known that before you administered the vaccines?

A. No, there would not.

Respondent’s reliance on this testimony to prove Appellant’s negligence is misplaced. Appellant was found guilty of negligence because the Board found that he had not ensured that the vaccines were properly acquired and/or maintained. The fact that Appellant could not know the temperature or condition of the vaccines at the time of its delivery is irrelevant if Appellant properly entrusted the care of these vaccines to Judy Tabor, who had vast experience in handling and ordering vaccines. Also, Appellant ensured the safety of these vaccines by having them delivered to a temperature controlled storage facility. Short of Appellant waiting by his home or office everyday and inspecting the boxes as they arrived individually, Appellant did all that he could do to ensure the safety of the vaccines.

It is apparent from the evidence that Appellant took substantial steps in ensuring that the vaccines were adequately refrigerated at all times. Further, the fact that no vaccines were ever in fact spoiled and no animals were ever harmed is evidence of Appellant’s proper handling and supervision of the vaccines. “A reviewing court may reverse or modify a decision of an agency if the findings, inferences, conclusions, or decisions of that agency are clearly erroneous in view of the reliable, probative and substantial evidence on the whole record.” Bass v. Isochem, 365 S.C. 454, 617 S.E.2d 369 (S.C. App. 2005). Since the Board’s finding in this matter is clearly erroneous in light of the evidence, the Order of the Board must be reversed.

ORDER

There evidence does not support the Board’s finding that Appellant has violated S.C. Code Ann. §40-69-140(12) by failing to ensure that vaccines were properly acquired and/or maintained under conditions adequate to safeguard the animals in his care and the public health. Therefore,

IT IS HEREBY ORDERED that the decision of the Board of Veterinary Medicine is reversed.

AND IT IS SO ORDERED.

__________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge

July 3, 2007

Columbia, South Carolina