American Association of Veterinary State

Transcription

1 American Association of Veterinary State Boards Top Recent Regulatory Cases September 19, :45-11:45am

2 Speaker Dale Atkinson, J.D. AAVSB General Counsel ASWB AAVSB NABP Atkinson & Atkinson FCLB 1466 Techny Road ACPE Northbrook, IL FARB JRCERT NMTCB FSMTB ARBO EBPHI..others

3 Top Recent Regulatory Cases Heim v. Zoning Board of Appeals, 2008 WL (CT 2008) Supreme Court of Connecticut Reversed lower court Supreme Court held that Veterinary clinic is a health oriented office Illegal conditions imposed upon zoning permit were NOT severable

4 Top Recent Regulatory Cases Kirk v New York State Department of Education, 2008 WL (U.S.DC W.D. NY 2008) United States District Court Plaintiff is a Canadian citizen Holds a TN Visa (that permits him to live and work in the United States temporarily)

5 Kirk TN Visa granted pursuant to the North American Free Trade Agreement (NAFTA) Further, Plaintiff able to obtain temporary waiver of citizenship requirement by establishing that there was a shortage of veterinarians resulting in NY issuing him a limited license

6 Kirk Limited license from NY has allowed the veterinarian to practice for 4 years Limited license valid thru July 2008 and cannot be renewed or extended NY law limits licensure as a veterinarian to US citizens and aliens lawfully admitted for permanent residence

7 Kirk Veterinarian filed suit arguing that NY law violated his rights under Equal Protection Clause (14 th Amendment) Supremacy Clause

8 Kirk On cross motions for summary judgment, the District Court held in favor of the veterinarian finding that the NY law violated both the Equal Protection ti clause and Supremacy Clause of the US Constitution.

9 Top Recent Regulatory Cases In the Matter of Dudley, 2008 WL (App. Ct. MN 2008) Minnesota Court of Appeals affirmed revocation of veterinarian s license. Board filed complaint alleging g licensee provided substandard care for 3 animals Board also alleged recordkeeping violations

10 Dudley Court upheld as supported by substantial evidence the finding and sanction imposed. Court rejected licensee arguments related to allegations that the administrative action was not supported by the evidence Court also held previous disciplinary actions properly admitted in proceedings for limited purposes.

11 Top Recent Regulatory Cases Medical Center Pharmacy v. Mukasey, 2008 WL (5th Cir. 2008) United States Court of Appeals 5 th Circuit vacated and remanded lower court decision. 5 th Circuit held that compounded drugs for human use are new drugs as defined, but exempt tfrom new drug application process so long as certain conditions are met.

12 Mukasey Relevant to AAVSB attendees, the court addressed the new animal drug portions of the act. Held that amendments under the Animal Medicinal Drug Use and Clarification Act (AMDUCA) clarify that compounded animal drugs are new drugs. But exemptions to compounding exist as with drugs for humans.

13 Top Recent Regulatory Cases Metz v. Veterinary Examining Board, 741 N.W. 2d 244 (App. Ct. WI 2007) Appellate Court reversed lower court and granted summary judgment motion in favor of board Department of Regulation and Licensing filed complaint against veterinarian alleging the licensee sold/dispensed prescription drugs to farm owners without the necessary VPC relationship

14 Metz Shortly thereafter, the licensee filed suit in state court alleging the VPC statute in the practice act was unconstitutionally vague The administrative proceedings were stayed and the court addressed the exhaustion doctrine (must complete the administrative proceedings before moving to court)

15 Metz Court rejected the licensee arguments that administrative board had no authority to rule on constitutionality of statute and that the board failed to promulgate a rule on the subject. Court held that licensee could have all arguments relevant determined by board and pursue judicial i review if warranted.

16 Top Recent Regulatory Cases Lawendy v. Connecticut Board of Veterinary Medicine, 2008 WL (App. Ct. CT 2008) Veterinarian charged with negligence and assisting in the unauthorized practice of vet medicine. Court rejected licensee arguments and held Under negligence theory, board need not show actual injury (as would be required in tort action) Licensee was provided with adequate notice of charges Use of affidavit in admin proceeding was allowed as licensee did not allege nor show prejudice

17 Top Recent Regulatory Cases Loman v. Freeman, 2008 WL (IL 2008) University of Illinois College of Veterinary Medicine professor Not licensed as a veterinarian (not required under ILL law) Within duties, professor examined and treated t horses as part of teaching training vet students Granted permission to perform surgery on left carpal bone and to drain fluid from right stifle on horse Professor performed surgery on right stifle Plaintiff complains horse ruined for future racing

18 Loman Plaintiff filed suit alleging negligence and conversion against the professor One of defendant s defense is sovereign immunity and that such an action must be brought in the Court of Claims

19 Loman Issue: whether a vet employed as a member of the faculty at a state university is bound by a duty of care independently of his state employment Additional issue: whether a judgment against the defendant could operate to control the actions of the state or subject it to liability.

20 Loman Court held that the duty owed by the veterinarian arose independently of his employment by the state and he was not performing a uniquely governmental function. Court also held that a judgment against the defendant d would not subject the state to liability.

21 Loman Professor also argued he was immune from liability as he was not licensed and exempt under the vet practice act. Court rejected this claim stating that licensing laws are not tort immunity acts and that a duty arises out of more than the mere licensure of a professional

22 Additional Top Cases As time permits Questions??