ORDERS:
FINAL ORDER AND DECISION
I. Introduction
Debra Ann Andrews, D.V.M., Sharon Ann Jansky, D.V.M. and Z.N. Marvis, D.V.M. (Veterinarians)
bring this appeal challenging a decision by the South Carolina Department of Labor, Licensing and
Regulation, State Board of Veterinary Medical Examiners (Board) which concluded the Veterinarians
violated S.C. Code Ann. § 40-69-140(1), S.C. Code Ann. § 40-69-140(12), and S.C. Code Ann. §
40-69-140(18).
In arriving at its conclusions, the Board determined that the Veterinarians operate The Ark Animal
Hospital in Surfside Beach, South Carolina and that each of the veterinarians are licensed by the
Board to practice veterinary medicine in South Carolina. Further, the Board found that the Ark
employed Adreann Geise (Geise or intern), a graduate of a veterinary school, as a veterinary intern.
As an intern, she was a supervised by the Veterinarians as she “examined, diagnosed and treated
animals, . . . [and] prescribed or transmitted a prescription for medication.” The intern treated
“Munch Jones” with the Board holding that “treatment of Munch was within the standard of care.”
However, the Board concluded that “Ms. Geise performed activities not permitted by . . . an
individual who has not received an intern permit.” As to the lack of an “intern permit,” the Board
found that the Veterinarians “signed Ms. Geise's application for internship but never requested or
received proof of Ms. Geise's intern permit documenting the dates of the internship.” In addition, the
appealed order found that “[t]he Board never received Ms. Geise' s internship application and Ms.
Geise has never been issued a license or intern permit.”
Based on such facts, the Board made a concluding determination that the Veterinarians “failed to
comply with the Board's Statutes, Rules and Regulations concerning internships in their employment
of Ms. Geise.” More particularly, the Board found three violations committed by the Veterinarians:
The [Veterinarians] violated S.C. Code Ann. §40-69-140(1) (2001) in that [they]
violated Regulations of the Board, specifically Regulation 120-3.2 regarding the intern
program.
The [Veterinarians] violated S.C. Code Ann. §40-69-140(12)(2001) in that they
engaged in negligence in the practice of veterinary medicine by permitting an
unlicensed individual to perform veterinary services, regardless of whether her work
was supervised by a licensed individual, and by failing to observe the laws and
regulations governing the veterinary profession.
The [Veterinarians] violated S.C. Code Aim. §40-69-140(18)(2001) by assisting an
unlicensed person to practice veterinary medicine in violation of Article 1 of Chapter
69 of Title 40 of the South Carolina Code of Laws, 1976, as amended.
II. Analysis
A. Violation of Regulation 120-3.2
The Board held the Veterinarians violated S.C. Code Ann. §40-69-140(1) (2001) in that they violated
regulation 120-3.2 regarding the intern program. Regulation 120-3.2 states the following:
A. All senior students and unlicensed graduates who have not practiced for a period
of ninety (90) days shall complete a ninety (90) day internship under the supervision
of a licensed veterinarian in good standing in any state, territory or district of the
United States or Canada.
B. The supervising veterinarian shall submit a certification form stating that the
applicant has satisfactorily completed the internship. The form is available upon
request from the Board office. A supervising veterinarian shall notify the Board in
writing immediately upon the termination of the student or graduate.
C. An applicant may complete the internship by obtaining a temporary permit from
the Board office. The temporary intern permit, verified in writing and received by the
Board showing the name, location of practice and anticipated start date of
employment, will allow the applicant to practice under the immediate supervision of
a licensed South Carolina veterinarian in good standing with the Board.
D. A supervising veterinarian is fully responsible for all practice by a student or
graduate during the period of supervision and is subject to disciplinary action for any
violation of the Act by the student or graduate.
E. A student or graduate shall identify himself or herself as an intern before practicing
veterinary medicine.
Of the above, only “B” and “D” impose duties upon the Veterinarians.
1. Reporting Duties
Under “B” the Veterinarians have the reporting duties to “submit a certification form stating that the
applicant has satisfactorily completed the internship” and to “notify the Board in writing immediately
upon the termination of the student or graduate.” Here, the Board made no findings of fact holding
that the intern completed the internship nor did the Board make any findings of fact holding that the
intern was terminated. Thus, there being no finding of completion, there is no duty of certification.
Likewise, there being no finding of termination, there is no duty of notice. Accordingly, no violation
of Regs.120-3.2(B) exists.
2. Supervisory Duties
“D” explains the Veterinarians’ supervisory duties in that the “supervising veterinarian . . . is subject
to disciplinary action for any violation of the Act by the student or graduate.” (Emphasis added).
Therefore, to discipline the Veterinarians, the Board must establish a violation by Ms. Geise.
a. Intern: Introduction
The Board found the intern violated the Act by carrying out “activities not permitted by an unlicensed
individual or an individual who has not received an intern permit.” Therefore, the issue is whether
the intern’s activities required a licence (i.e. did she perform acts that constituted the practice of
veterinary medicine) and, if so, whether the intern had the requisite Board permission to perform such
activities.
b. Intern: Activities
The practice of veterinary medicine means “[t]o diagnose, prescribe, or administer any drug,
medicine, biologic, appliance, or application or treatment of whatever nature for the cure, prevention,
or relief of any wound, fracture, or bodily injury or disease of an animal.” 40-69-20(4)(a). Here, the
Board had ample evidence supporting its conclusion that the intern “examined, diagnosed and treated
animals, . . . [and] prescribed or transmitted a prescription for medication.” Thus, the intern engaged
in the practice of veterinary medicine.
c. Intern: Permission
In South Carolina, one may not “engage in a profession or occupation regulated by a board or
commission administered by the Department of Labor, Licensing and Regulation without holding a
valid authorization to practice as required by statute or regulation.” S.C. Code Ann. § 40-1-30.
Authorization to practice is required for veterinarians since “it is unlawful to practice veterinary
medicine” without a license. S.C. Code Ann. § 40-69-80(A). A license to practice veterinary
medicine includes “any permit, approval, registration, or certificate issued by the Board.” S.C. Code
Ann. § 40-69-20(8). Accordingly, since the intern in this case engaged in the practice of veterinarian
medicine, the question is whether she was authorized to do so.
Authorization for an intern to practice veterinarian medicine is granted via Regs. 120-3.3. Under that
regulation, the Board authorizes the issuance of a “veterinary intern permit” to persons who have
“filed an application with the board no less than thirty (30) days prior to the next scheduled
examination; . . . provide[d] a certified copy of the applicant's transcript, indicating veterinary degree,
by a college approved by the American Veterinary Medical Association. . . . ; [paid] the required fee;
. . . [and who are] employed and under the immediate supervision of a Board approved South
Carolina veterinarian, verified in writing and received by the Board showing the name, location of
practice and anticipated start date of employment.”
Under the facts found by the Board (and supported by substantial evidence), at no point during the
Veterinarians’ employment of the intern was a permit issued to the intern. Accordingly, the intern
violated the veterinarian act and, under the “any violation” standard, the Veterinarians violated Regs.
120-3.2(D).
B. Negligence in the Practice of Veterinary Medicine
The substance of the Board’s negligence conclusion is that the Veterinarians committed negligence
per se by their failure to comply with applicable regulations.
Norton v. Opening Break of Aiken,
Inc., 319 S.C. 469, 462 S.E.2d 861 (1995) (violating a regulation prohibiting the sale of alcohol to
minors constitutes negligence per se). In particular, the Board found a violation of S.C. Code Ann.
§40-69-140(12)(2001) since the Veterinarians engaged in negligence in the practice of veterinary
medicine. The alleged failure of the Veterinarians to observe the laws and regulations governing the
veterinary profession through allowing an unlicenced individual to perform veterinary services is the
essence of the negligence per se conclusion.
To support negligence per se, among other criteria,
a showing must be made that the violated
provision of law creates a duty amounting to a standard of care. Rayfield v. South Carolina Dept.
of Corrections, 297 S.C. 95, 374 S.E.2d 910 (Ct. App. 1988) (“Negligence per se simply means the
jury need not decide if the defendant acted as would a reasonable man in the circumstances. The
statute [or regulation] fixes the standard of conduct required of the defendant, leaving the jury merely
to decide whether the defendant breached the statute [or regulation]. If he did, his failure to take due
care is established as a matter of law.”); Osborne v. McMasters, 41 N.W. 543 (Minn. 1889) (“All
that the statute [or regulation] does is to establish a fixed standard by which the fact of negligence
may be determined.”). In the instant case, the regulation violated by the Veterinarians does not set
a standard of care since the “any violation of the Act by the [intern]” language is far too broad to be
used to identify a specific standard of care.
In particular, the “any violation of the Act by the [intern]” language does not address a standard of
care under the facts of the instant case. Rather, the regulation is triggered only because of a mere
failure of an intern to perform the administrative task of obtaining a permit. Such circumstances
cannot form the grounds for a finding of negligence per se. Talley v. Danek Medical, Inc., 179 F.3d
154 (4th Cir. 1999) (“Where a statutory provision does not define a standard of care but merely
imposes an administrative requirement, such as the requirement to obtain a license or to file a report
to support a regulatory scheme, violation of such requirement will not support a negligence per se
claim. Even if the regulatory scheme as a whole is designed to protect the public or to promote safety,
the licensing duty itself is not a standard of care, but an administrative requirement.”). Moreover,
even if the “any violation” standard could be construed to seek the protection of the public and their
pets, the Board made no finding that any such standard was violated in this case. On the contrary,
just the opposite is true since not only was no animal harmed by the intern’s actions but also the
Board held that the intern’s treatment of the only animal investigated, “Munch Jones,” was “within
the standard of care.”
Accordingly, as a matter of law, the Board erred in holding that the Veterinarians engaged in
negligence in the practice of veterinary medicine.
C. Assisting An Unlicensed Person to Practice Veterinary Medicine
The Board concluded that the Veterinarians violated S.C. Code Ann. §40-69-140(18)(2001) by
assisting an unlicensed person to practice veterinary medicine in violation of Article 1 of Chapter 69
of Title 40 of the South Carolina Code of Laws, 1976, as amended. While the Board finds facts that
establish the intern was an unlicensed person practicing veterinary medicine, the Board makes no
explicit findings of fact identifying the actions of the Veterinarians that constituted “assisting an
unlicensed person to practice veterinary medicine.”
However, notwithstanding this lack of specificity, a careful reading of the order as a whole suggests
the alleged prohibited assistance to the intern is the act of allowing the intern to treat animals without
the Veterinarian’s first having “requested or received proof of Ms. Geise's intern permit documenting
the dates of the internship.” Assuming such is the basis for the violation, no charge can be made that
the failure to inquire constitutes assisting an unlicensed person to practice veterinary medicine if no
duty exists for a supervising veterinarian to inquire as to the issuance of an intern permit.
Under the existing regulations, no specific duty to inquire is imposed on the supervising veterinarian.
The testimony is uncontradicted that the supervisory veterinarian is not required to seek a verification
from the Board that an internship permit has been issued. In fact, even the intern has no obligation
to provide a copy of the permit to the supervising veterinarian. Likewise, the Board itself has no
obligation to notify a supervising veterinarian when an application has been received and no
mechanism even exists for the Board to notify the supervising veterinarian that an intern’s permit has
been issued.
Based on the record made, reasonable minds could not reach a conclusion that the Veterinarians
assisted an unlicensed person to practice veterinary medicine since the evidence overwhelming shows
that the Veterinarians hired an intern holding a degree as a doctor of veterinary medicine, signed the
necessary forms for the intern to obtain a permit, and had no specific directive to inquire as to the
receipt of the permit by the intern. Further, the Board had no policy or practice of notifying a
supervisory veterinarian on whether a permit had or had not been issued. Accordingly, under the
circumstances of this case, no substantial evidence exists to show the Veterinarians violated S.C.
Code Ann. §40-69-140(18)(2001) by assisting an unlicensed person to practice veterinary medicine.
III. Conclusion
Based upon a review of the record and the arguments made, only one violation results since the intern
violated the veterinarian act by practicing veterinary medicine without a permit and, correspondingly,
under the “any violation” measure, the intern’s violation resulted in the Veterinarians violating Regs.
120-3.2(D). Since the Board below found three violations and this appeal concludes only one
violation occurred, this matter is remanded to the Board for the sole purpose of determining what
sanction, if any, is warranted in this matter.
AND IT IS SO ORDERED.
_________________________________
RAY N. STEVENS
Administrative Law Judge
Dated: April 6, 2004
Columbia, South Carolina |