The practice of veterinarian medicine requires a skill set and commitment to care often equivalent to that of the practice of medicine for that particular mammal we call human beings. State law has long recognized this fact and imposes licensing requirements of substantial difficulty upon those who wish to practice veterinarian medicine. This article shall discuss definitions of the practice; obligations imposed upon veterinarians in most states, and the California system of veterinarian medicine.
. A veterinarian is usually defined as any person who is licensed to practice veterinary medicine for the diagnosis, treatment, or prevention of animal disease. Thus, the practice of veterinary medicine is defined by reference to the diagnosis and treatment of animals, animal conditions and animal diseases. See Nelson v. State Bd. of Veterinary Med., 863 A.2d 129 (Pa. Comm. Ct. 2004).
Another useful definition is that the practice of veterinary medicine diagnoses, treats, corrects, changes, relieves, or prevents animal disease, deformity, defect, injury, or other physical or mental conditions. Ramsey v. Lambert, 2009 Ky. App. LEXIS 125 (Ky. Ct. App. Aug. 7, 2009).
State governments prescribe the educational standards required to practice most professions including veterinarian medicine. The majority of state statutes require that one who applies to take the veterinary examination must be a graduate of a recognized veterinary college. Usually, the legislature requires the applicant to take and pass an examination in order to insure the protection of the public. Most statutes provide that no person should practice veterinary medicine and surgery without obtaining a certificate from the state board of veterinary examiners.
Further, a veterinary board can refuse to issue a license or a temporary permit to any applicant, or suspend or revoke the license of any person who has professional association with or lends his/her name to any unlicensed person. Stephan v. State Veterinary Medical Bd., 113 Ohio App. 538 (Ohio Ct. App., Hamilton County 1960).
Although the disciplinary proceedings to revoke or suspend the license of a veterinarian or other professional are basically civil in nature, they can have criminal implications, and severe punishments can arise from an adverse finding. See In re Kerlin, 151 N.J. Super. 179 (App.Div. 1977) for an example.
A veterinarian’s license can also be revoked or suspended for the conviction of a crime involving moral turpitude, immoral or unprofessional conduct, including but not limited to permitting an unlicensed person to engage in veterinary medicine, gross malpractice, and false representations regarding surgeries performed. Newman v. Veterinary Bd. of Governors, 2010 Wash. App. LEXIS 1025 (Wash. Ct. App. May 17, 2010). It is to be noted that the burden of proof in a veterinarian disciplinary proceeding is preponderance of the evidence unlike criminal proceedings. See Austin v. State, 54 Ill. Ct. Cl. 375 (Ill. Ct. Cl. 2002).
A license is required to practice as a veterinarian. Rules regarding the issuance of a license vary from state to state. The Board of Veterinary Medical Examiners of a State normally has the right to determine whether the school from which an applicant received his/her diploma was in good standing at the time of its issuance. Generally, it is required that a diploma of an applicant for a license must have been granted by a recognized college and it should satisfy certain standards required by the examining board or by any other authorized body.
Certain state statutes provide for issuance of a license to any person who is a graduate from a recognized college or veterinary department of any university or agricultural college approved by the U.S. Bureau of Animal Industry and who is a resident elector of the state at the time of passage of a statute. Meads v. Human, 84 Okla. 82 (Okla. 1921).
A state has the power to waive the requirements for a license in an instance where a person possesses sufficient experience in the practice as a veterinarian. A person who has sufficient knowledge, skill, and competence may be permitted to continue his/her practice by giving exemption from the requirement of attending an examination for license.
A state has also the power to make statutes for revocation of a license of a veterinarian. It has to be done reasonably and is subject to judicial review. The revocation of a license may be made when s/he is convicted of moral turpitude, or in the case of malpractice or on commission of any other unlawful activities relating to practice. Bell v. Bd. of Regents, 295 N.Y. 101 (N.Y. 1946).
Liability for Death or Injury
To establish negligence by a veterinarian, it must be shown that the injury was caused by the performance of an action that a veterinarian of ordinary skill, care and diligence would not perform under like or similar circumstances, or by the failure or omission to do some action that such a veterinarian is expected to perform under like or similar circumstances. And note that a veterinary surgeon who undertakes to treat an animal cannot absolutely escape liability for his/her negligence because of the fact that the treatment is to be gratuitous. Latham v. Elrod, 6 Ala. App. 456 (Ala. Ct. App. 1912). This standard is much the same for any medical negligence action it is to be noted, including that pertaining to humans.
Similarly, a veterinarian who introduces an individual as his/her servant or other agent, thereby causing a third person to rely upon the care or skill of such an agent will be subject to liability to the third person for the harm caused by the lack of such care or skill on the part of the servant or agent. Beck V. Henkle-Craig Live-Stock Co., 171 N.C. 698 (N.C. 1916).
Thus, the liability of a veterinarian is tested by the rules with respect to the ordinary care and the lack thereof, as are applied to medical physicians and surgeons. Ullmann v. Duffus, 2005 Ohio 6060 (Ohio Ct. App., Franklin County Nov. 15, 2005).
A veterinary surgeon impliedly engages and is bound to use in the performance of his/her duties in his employment such reasonable skill, diligence, and attention as may be ordinarily expected of persons in that profession. S/he is not required to contract to use the highest degree of skill or an extraordinary amount of diligence. Barney v. Pinkham, 29 Neb. 350 (Neb. 1890).
Test of Negligence:
To establish negligence by a veterinarian, it must be shown that the injury was caused by the performance of a particular act that a veterinarian of ordinary skill, care, and diligence would not perform under like or similar circumstances, or by the failure or omission to do some particular action that such a veterinarian is expected to perform under like or similar circumstances. Ullmann v. Duffus, 2005 Ohio 6060 (Ohio Ct. App., Franklin County Nov. 15, 2005).
Again, it is to be emphasized that veterinarian negligence cases are to be analyzed under the same standard applied to physicians and surgeons in medical malpractice cases. McGee v. Smith, 107 S.W.3d 725 (Tex. App. Fort Worth 2003).
California laws on regulation and licensing of veterinarians can be found in Cal Bus & Prof Code §§ 4800 through 4917.
1. Veterinary Medical Board
Pursuant to Cal Bus & Prof Code § 4800m a veterinary medical board is established in the Department of Consumer Affairs consisting of seven members, three of whom are public members.
Cal Bus & Prof Code § 4801 provides that each member, except the public members, must be a graduate of some veterinary college authorized by law to confer degrees, a bona fide resident of California for a period of at least five years immediately preceding his or her appointment, a veterinarian licensed by the state, and must have been actually engaged in the practice of his or her profession in California during this period. The public members must have been residents of California for a period of at least five years before their appointment and must not be licentiates of the board or of any other board.
Pursuant to Cal Bus & Prof Code § 4802, the members of the board must hold office for a term of four years. Each member must serve until the appointment and qualification of his or her successor or until one year has elapsed since the expiration of the term for which s/he was appointed, whichever first occurs. The Governor appoints five members, one of whom shall be a public member. The Senate Committee on Rules and the Speaker of the Assembly each appoints a public member.
Pursuant to Cal Bus & Prof Code § 4804.5, the board appoints a person exempt from civil service who is designated as an executive officer and who exercises the powers and perform the duties delegated by the board and vested in him or her.
2. Licensing of Veterinarians
Pursuant to Cal Bus & Prof Code § 4825, it is unlawful for any person to practice veterinary medicine or any branch thereof in California unless at the time of so doing, such person holds a valid, unexpired, and unrevoked license.
Pursuant to Cal Bus & Prof Code § 4826.1, a veterinarian who on his or her own initiative, at the request of an owner, or at the request of someone other than the owner, renders emergency treatment to a sick or injured animal at the scene of an accident is not liable in damages to the owner of that animal in the absence of gross negligence.
However, the following are the excepted practices which do not require a license:
a) Practicing veterinary medicine as a bona fide owner of one’s own animals. This exemption applies to the following:
(1) The owner’s bona fide employees.
(2) Any person assisting the owner, provided that the practice is performed gratuitously.
b) Lay testing of poultry by the whole blood agglutination test. For purposes of this section, “poultry” means flocks of avian species maintained for food production, including, but not limited to, chickens, turkeys, and exotic fowl.
c) Making any determination as to the status of pregnancy, sterility, or infertility upon livestock, equine, or food animals at the time an animal is being inseminated, providing no charge is made for this determination.
d) Administering sodium pentobarbital for euthanasia of sick, injured, homeless, or unwanted domestic pets or animals without the presence of a veterinarian when the person is an employee of an animal control shelter and its agencies or humane society and has received proper training in the administration of sodium pentobarbital for these purposes.
Pursuant to Cal Bus & Prof Code § 4829, any license granted to any person to practice veterinary medicine, or any branch thereof, remains in force until the renewal fee becomes due and thereafter so long as the holder complies with the provisions of this chapter relating to the renewal of the license and not otherwise.
Note the license at any time may be suspended or revoked and even criminal sanctions occur for some license violations.
Pursuant to Cal Bus & Prof Code § 4831, any person, who violates or aids or abets in violating any of the provisions, is guilty of a misdemeanor and upon conviction thereof will be punished by a fine of not less than $500, nor more than $2,000, or by imprisonment in a county jail for not less than 30 days nor more than one year, or by both the fine and imprisonment.
Pursuant to Cal Bus & Prof Code § 4846.4, a license holder must biennially apply for renewal of his or her license or registration on or before the last day of the applicant’s birthday month. The application must be made on a form provided by the board.
Cal Bus & Prof Code § 4846.4 provides that the application must contain a statement to the effect that the applicant has not been convicted of a felony, has not been the subject of professional disciplinary action taken by any public agency in California or any other state or territory, and has not violated any of the provisions of this chapter. If the applicant is unable to make that statement, the application must contain a statement of the conviction, professional discipline, or violation. The board, as part of the renewal process, makes necessary inquiries of the applicant and conducts an investigation to determine if cause for disciplinary action exists.
Pursuant to Cal Bus & Prof Code § 4848, the board, by means of examination, ascertains the professional qualifications of all applicants for licenses to practice veterinary medicine and issues a license to every person whom it finds to be qualified. The board must not issue license to anyone who has not demonstrated his or her competency by examination.
The examination must consist of each of the following:
A) A licensing examination that is administered on a national basis.
B) A California state board examination.
C) An examination concerning those statutes and regulations of the Veterinary Medicine Practice Act administered by the board. University of California and Western University of Health Sciences veterinary medical students who have successfully completed a board-approved course on veterinary law and ethics covering the Veterinary Medicine Practice Act shall be exempt from this provision.
Cal Bus & Prof Code § 4848 provides that the licensing examination may be waived by the board in any case in which it determines that the applicant has taken and passed an examination for licensure in another state substantially equivalent in scope and subject matter to the licensing examination last given in California before the determination is made, and has achieved a score on the out-of-state examination at least equal to the score required to pass the licensing examination administered in California.
Pursuant to Cal Bus & Prof Code § 4848, the board must not preclude a person who has completed a portion of his or her educational program, as determined by the board, in a veterinary college, from permitting to take any examination prior to satisfying the requirements for application for a license. For purposes of reciprocity, the board can waive the examination requirements, and issue a license to an applicant to practice veterinary medicine if the applicant meets all of the following requirements and would not be denied issuance of a license by any other provision of this code:
1) The applicant holds a current valid license in good standing in another state, Canadian province, or United States territory and within three years immediately preceding filing an application for licensure in this state, has practiced clinical veterinary medicine for a minimum of two years and completed a minimum of 2,944 hours of clinical practice. Experience obtained while participating in an American Veterinary Medical Association (AVMA) accredited institution’s internship, residency, or specialty board training program is valid for meeting the minimum experience requirement.
2) At the time of original licensure, the applicant passed the national licensing requirement in veterinary science with a passing score or scores on the examination or examinations equal to or greater than the passing score required to pass the national licensing examination or examinations administered in this state.
3) The applicant has either graduated from a veterinary college recognized by the board under Section 4846 or possesses a certificate issued by the Educational Commission for Foreign Veterinary Graduates (ECFVG) or the Program for the Assessment of Veterinary Education Equivalence (PAVE).
4) The applicant passes an examination concerning the statutes and regulations of the Veterinary Medicine Practice Act, administered by the board.
(5) The applicant completes an approved educational curriculum on regionally specific and important diseases and conditions. The board, in consultation with the California Veterinary Medical Association (CVMA), must approve educational curricula that cover appropriate regionally specific and important diseases and conditions that are common in California.
Cal Bus & Prof Code § 4848 provides that the board must issue a temporary license valid for one year to an applicant to practice veterinary medicine under the supervision of another California-licensed veterinarian in good standing if the applicant satisfies all of the following requirements:
1) The applicant meets all the above requirements.
2) The applicant would not be denied issuance of a license under any other provision of this chapter.
3) The applicant agrees to complete the approved educational curriculum on regionally specific and important diseases and conditions during the period of temporary licensure.
Pursuant to Cal Bus & Prof Code § 4848, upon completion of the curriculum on regionally specific and important diseases and conditions, a temporary licensee must submit an application for full licensure accompanied by verification of completion of that curriculum and all applicable fees.
The board, in its discretion, may extend the expiration date of a temporary license for not more than one year for reasons of health, military service, or undue hardship. An application for an extension shall be submitted on a form provided by the board.
Pursuant to Cal Bus & Prof Code § 4853, all premises where veterinary medicine, veterinary dentistry, veterinary surgery, and the various branches thereof is being practiced must be registered with the board. “Premises” for the purpose of this chapter includes a building, kennel, mobile unit, or vehicle. Mobile units and vehicles are exempted from independent registration with the board when they are operated from a building or facility which is the licensee manager’s principal place of business and the building is registered with the board, and the registration identifies and declares the use of the mobile unit or vehicle.
Pursuant to Cal Bus & Prof Code § 4854, all premises where veterinary medicine, veterinary dentistry, or veterinary surgery is being practiced, and all instruments, apparatus and apparel used in connection with those practices, must be kept clean and sanitary at all times, and must conform to those minimum standards established by the board.
Disciplining of Veterinarians
Pursuant to Cal Bus & Prof Code § 4875, the board may revoke or suspend for a certain time the license or registration of any person to practice veterinary medicine after notice and hearing. In addition to its authority to suspend or revoke a license or registration, the board has the authority to assess a fine not in excess of $5,000 against a licensee or registrant for any of the causes specified in Section 4883. A fine may be assessed in lieu of or in addition to a suspension or revocation.
Pursuant to Cal Bus & Prof Code § 4875.2, if, upon completion of an investigation, the executive officer has probable cause to believe that a veterinarian, a registered veterinary technician, or an unlicensed person acting as a veterinarian or a registered veterinary technician has violated provisions of this chapter, s/he may issue a citation to the veterinarian, registered veterinary technician, or unlicensed person. Each citation must be in writing and must describe with particularity the nature of the violation, including a reference to the provision of this chapter alleged to have been violated. In addition, each citation may contain an order of abatement fixing a reasonable time for abatement of the violation, and may contain an assessment of a civil penalty.
The citation must be served upon the veterinarian, registered veterinary technician, or unlicensed individual personally or by any type of mailing requiring a return receipt. Before any citation may be issued, the executive officer must submit the alleged violation for review and investigation to at least one designee of the board who is a veterinarian licensed in or employed by the state. The review must include attempts to contact the veterinarian, registered veterinary technician, or unlicensed person to discuss and resolve the alleged violation. Upon conclusion of the board designee’s review, the designee must prepare a finding of fact and a recommendation. If the board designee concludes that probable cause exists that the veterinarian, registered veterinary technician, or unlicensed person has violated any provisions of this chapter, a civil citation must be issued to the veterinarian, registered veterinary technician, or unlicensed person.
Pursuant to Cal Bus & Prof Code § 4875.6, if a veterinarian, a registered veterinary technician, or an unlicensed person desires to administratively contest a civil citation or the proposed assessment of a civil penalty therefor, s/he must, within 10 business days after receipt of the citation, notify the executive officer in writing of his or her request for an informal conference with the executive officer or his or her designee. The executive officer or his or her designee must hold, within 60 days from the receipt of the request, an informal conference. At the conclusion of the informal conference, the executive officer may affirm, modify, or dismiss the citation or proposed assessment of a civil penalty, and s/he must state with particularity in writing his or her reasons for the action.
If the veterinarian, registered veterinary technician, or unlicensed person desires to administratively contest a decision made after the informal conference, s/he must inform the executive officer in writing within 30 calendar days after s/he receives the decision resulting from the informal conference.
Cal Bus & Prof Code § 4875.6 provides that if the veterinarian, registered veterinary technician, or unlicensed person fails to notify the executive officer in writing that s/he intends to contest the citation or the proposed assessment of a civil penalty therefor or the decision made after an informal conference, the decision made after an informal conference is deemed a final order of the board and must not be subject to further administrative review.
Cal Bus & Prof Code § 4875.6 provides that where a fine is paid to satisfy an assessment based on the finding of a violation, payment of the fine is represented as satisfactory resolution of the matter for purposes of public disclosure.
Pursuant to Cal Bus & Prof Code § 4875.6, a veterinarian, a registered veterinary technician, or an unlicensed person may, in lieu of contesting a citation, transmit to the board the amount assessed in the citation as a civil penalty, within 10 business days after receipt of the citation. An unlicensed person may notify the board and file a petition for a writ of administrative within 30 calendar days after receipt of the citation, without engaging in an informal conference or administrative hearing. If a petition is not filed, payment of any fine does not constitute an admission of the violation charged.
Cal Bus & Prof Code § 4875.6 provides that if a veterinarian, a registered veterinary technician, or an unlicensed person has notified the executive officer that s/he intends to administratively contest the decision made after the informal conference, the executive officer must forward the matter to the Attorney General’s office. After the hearing, the board and administrative law judge issues a decision, based on findings of fact, affirming, modifying, or vacating the citation, or directing other appropriate relief that includes a notice that the failure of a veterinarian, registered veterinary technician, or unlicensed person to comply with any provision of the board’s decision constitutes grounds for suspension or denial of licensure, or both, or suspension or denial of registration, or both.
Cal Bus & Prof Code § 4875.6 provides that after the exhaustion of the review procedures or if the time for all appeals has passed, the board may bring an action in the appropriate court in the county in which the offense occurred to recover the civil penalty and obtain an order compelling the cited person to comply with the order of abatement. In that action, the complaint must include a certified copy of the final order of the board, together with the factual findings and determinations of the board and administrative law judge. The findings must be prima facie evidence of the facts stated therein, and in the absence of contrary evidence may serve as the basis for the issuance of the judgment and order.
Pursuant to Cal Bus & Prof Code § 4875.6, failure of a licensee or registrant to pay a civil penalty within 30 days of the date of receipt of the assessment, unless the citation is being appealed, may result in disciplinary action being taken by the board. When a citation is not contested and a civil penalty is not paid, the full amount of the assessed civil penalty must be added to the fee for renewal of the license or registration. A license or registration must not be renewed without payment of the renewal fee and civil penalty. Any civil penalties received under this chapter must be deposited in the Veterinary Medical Board Contingent Fund.
Pursuant to Cal Bus & Prof Code § 4883, the board may deny, revoke, or suspend a license or registration or assess a fine for any of the following:
a) Conviction of a crime substantially related to the qualifications, functions, or duties of veterinary medicine, surgery, or dentistry, in which case the record of the conviction shall be conclusive evidence.
b) For having professional connection with, or lending the licensee’s or registrant’s name to, any illegal practitioner of veterinary medicine and the various branches thereof.
c) Violation or attempting to violate, directly or indirectly, any of the provisions of this chapter.
d) Fraud or dishonesty in applying, treating, or reporting on tuberculin or other biological tests.
e) Employment of anyone but a veterinarian licensed in the state to demonstrate the use of biologics in the treatment of animals.
f) False or misleading advertising.
g) Unprofessional conduct, that includes, but is not limited to, the following:
1) Conviction of a charge of violating any federal statutes or rules or any statute or rule of California regulating dangerous drugs or controlled substances. A plea or verdict of guilty or a conviction following a plea of nolo contendere is deemed to be a conviction. The board may order the license or registration to be suspended or revoked, or assess a fine, or decline to issue a license or registration, when the time for appeal has elapsed, or the judgment of conviction has been affirmed on appeal or when an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order of the Penal Code allowing the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment.
2) (A) The use of or prescribing for or administering to himself or herself, any controlled substance.
(B) The use of any of the dangerous drugs, or of alcoholic beverages to the extent, or in any manner as to be dangerous or injurious to a person licensed or registered under this chapter, or to any other person or to the public, or to the extent that the use impairs the ability of the person so licensed or registered to conduct with safety the practice authorized by the license or registration.
(C) The conviction of more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section or any combination thereof, and the record of the conviction is conclusive evidence.
3) A violation of any federal statute, rule, or regulation or any of the statutes, rules, or regulations of this state regulating dangerous drugs or controlled substances.
h) Failure to keep the licensee’s or registrant’s premises and all equipment therein in a clean and sanitary condition.
i) Fraud, deception, negligence, or incompetence in the practice of veterinary medicine.
j) Aiding or abetting in any acts that are in violation of any of the provisions of this chapter.
k) The employment of fraud, misrepresentation, or deception in obtaining the license or registration.
l) The revocation, suspension, or other discipline by another state or territory of a license, certificate, or registration to practice veterinary medicine or as a veterinary technician in that state or territory.
m) Cruelty to animals, conviction on a charge of cruelty to animals, or both.
n) Disciplinary action taken by any public agency in any state or territory for any act substantially related to the practice of veterinary medicine or the practice of a veterinary technician.
o) Violation, or the assisting or abetting violation, of any regulations adopted by the board pursuant to this chapter.
Pursuant to Cal Bus & Prof Code § 4910, a veterinary corporation is a corporation which is authorized to render professional services, so long as that corporation and its shareholders, officers, directors, and employees rendering professional services who are licensed veterinarians are in compliance with the Moscone-Knox Professional Corporation Act (Part 4 (commencing with Section 13400) of Division 3 of Title 1 of the Corporations Code), this article, and all other statutes and regulations pertaining to the corporation and the conduct of its affairs. With respect to a veterinary corporation, the governmental agency referred to in the Moscone-Knox Professional Corporation Act (Part 4 (commencing with Section 13400) of Division 3 of Title 1 of the Corporations Code) is the Veterinary Medical Board.
Pursuant to Cal Bus & Prof Code § 4915, if any person violates, attempts to violate, directly or indirectly, or assist in or abet the violation of, or conspire to violate, the Moscone-Knox Professional Corporation Act (Part 4 (commencing with Section 13400), of Division 3 of Title 1 of the Corporations Code), this article, or any regulation adopted pursuant to those provisions, it constitutes unprofessional conduct and violation of the chapter.
It is readily apparent that the procedural and skill requirements for licensure and practice of veterinary medicine are not significantly easier to accomplish than for those required for the practice of medicine and more than one person known to the writer, thinking of entering that field, decided instead to simply become a physician since it seemed no more difficult.
There is no particular reason why treatment of other mammals than humans would be considered easier or requiring less skill. Indeed, when one considers the dangers and risks inherent in treating larger animals, it can be argued that veterinarians often face greater challenges than the typical physician faces.