J.W. Temple v. BPOA, State Bd. of Vet. Med.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA James W. Temple, : Petitioner : : v. : No. 693 C.D. 2021 : Submitted: May 6, 2022 Bureau of Professional : and Occupational Affairs, : State Board of Veterinary Medicine, : Respondent : BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE STACY WALLACE, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE WALLACE FILED: August 5, 2022 James W. Temple, DVM (Petitioner), petitions for review of the May 26, 2021 order of the State Board of Veterinary Medicine (Board), which found that Petitioner failed to conform to the standards of acceptable and prevailing veterinary medical practice pursuant to Section 21(11) of the Veterinary Medicine Practice Act (Act).1 Petitioner contends that the expert testimony presented against him violated his right to due process by creating the appearance that the Board intermingled prosecutorial and adjudicatory functions, and that substantial competent evidence did not support the Board’s findings of fact because that same expert testimony was incompetent. After review, we affirm in part, vacate in part, and remand. 1 Act of December 27, 1974, P.L. 995, as amended, 63 P.S. § 485.21(11). I. Background and Procedural History This proceeding stems from Petitioner’s practice as a veterinarian at Sunbury Animal Hospital (the Hospital) in Sunbury, Pennsylvania. On February 18, 2016, Donna Kurtz (Owner) brought her dog, Tiki, to the Hospital for an emergency visit, where Petitioner performed an examination. Reproduced Record (R.R.) at 74a-76a. The record contains differing accounts of Tiki’s symptoms that day, both of which the Board appears to have relied upon when reaching its decision. According to Owner’s testimony, she informed Petitioner that Tiki was making “hacking” sounds and having difficulty breathing. Id. at 74a-75a. Tiki also vomited on the car ride to the Hospital, although this was “common” because of Tiki’s motion sickness. Id. at 76a. According to the notes in Tiki’s medical records, Owner reported Tiki had been “trying to throw up” since early that morning, was “heaving [and] vomiting froth,” could “hardly walk,” was very lethargic, and had been having trouble breathing since the night before. Id. at 346a. Petitioner’s examination revealed increased respiratory sounds over Tiki’s trachea and bronchi. Id. He then proposed Tiki may be suffering from canine flu. Id. at 76a. Owner requested that Tiki receive X-rays and blood tests, but Petitioner declined, saying he did not “feel that it was needed.” Id. at 77a. Petitioner prescribed amoxicillin and carpaquin for Tiki but took no other action. Id. at 77a-78a. Owner administered the medications as prescribed. Id. at 78a. Nonetheless, Tiki’s condition deteriorated. Id. at 78a-79a. It became harder for Tiki to breathe, and she began making what Owner described as a “death rattle . . . like a noisy breath, and she would fight for that.” Id. On February 21, 2016, Owner called the Hospital. Id. at 79a. Staff at the Hospital advised Owner to obtain a vaporizer for Tiki, and 2 Owner complied. Id. The vaporizer helped Tiki’s breathing to improve only briefly, …

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