The opinion of the court was delivered by: Judge Leavitt
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, President Judge, HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE JIM FLAHERTY, Senior Judge.
Kyu Son Yi, D.V.M., petitions for review of an adjudication of the State Board of Veterinary Medicine (Board) revoking his license to practice veterinary medicine on the basis of malpractice and inadequate patient record-keeping. In rendering this adjudication, the Board rejected the substance of the prosecution staff's expert testimony and, instead, used the knowledge of its individual Board members, who are veterinarians, to make findings of fact critical to its adjudication. The principal question we consider in this case is whether, in rendering an adjudication, an agency's use of facts not placed on the record but known to the professional members of the agency's governing board is an appropriate exercise of the agency's expertise.
The basic facts, which are not disputed, concern Dr. Yi's treatment of Mowgli, a 5-year old Pomeranian owned by Nadine Masters. On July 31, 2003, Masters brought Mowgli to Dr. Yi, who had never before seen the dog. Mowgli presented with multiple fractures to his left hind leg, some of which pierced the skin. The fractures had occurred several days earlier, which was known because the tissue around the fracture site had developed gangrene. After placing Mowgli under anesthesia, Dr. Yi cleaned the wound; removed the gangrenous tissue; applied an antibiotic wound dressing; immobilized the leg with a splint and stocking and injected analgesics for pain relief. The next day, August 1, 2003, Dr. Yi discharged Mowgli, dispensing phenylbutazone and aspirin for pain and vitamin tablets because Masters reported that Mowgli had a poor appetite. Dr. Yi advised Masters that the splint was temporary and that she must return no later than August 9, 2003, once she had decided on a course of treatment, including a possible amputation. Masters was given printed instructions on the care of a splint, which included a list of warning signs, such as discomfort or movement of a splint, that required prompt attention by a veterinarian. When Masters did not return to his office by August 9th, Dr. Yi called Masters and left messages on her phone.
On August 21, 2003, Masters appeared at Dr. Yi's office with Mowgli, whose leg was in far worse condition. Masters had attempted to reapply the splint. At that point, the only option was amputation, and it was scheduled for the next day. However, without explanation, Masters returned the following morning and took Mowgli to another veterinarian at Wissahickon Creek Animal Hospital. There, Mowgli's leg was amputated.*fn1
Three years later, the Bureau of Professional and Occupational Affairs (Bureau) initiated an enforcement action against Dr. Yi with a six-count order to show cause, in which the Bureau alleged:
10. The Respondent did not offer to take or take radiographs of Mowgli's leg.
11. The Respondent did not perform a complete physical examination of Mowgli.
12. The Respondent [did] not recommend, offer to perform or perform surgical repair of Mowgli's fractured leg.
13. The Respondent did not prescribe pain medication for Mowgli.
14. The Respondent did not refer Ms. Masters to a surgeon capable of surgically repairing Mowgli's leg.
Order to Show Cause, ¶¶10-14; Reproduced Record at 3a (R.R. ___). Based on these factual allegations, the Bureau charged Dr. Yi with five deviations "from the standards of acceptable and prevailing veterinary medical practice in [the] care and treatment of Mowgli" (Counts I-V). Order to Show Cause, ¶27; R.R. 4a. In Count VI of the Order to Show Cause, the Bureau charged Dr. Yi with failure to maintain appropriate veterinary medical records. Dr. Yi denied the above-quoted allegations of malpractice but did not specifically deny the allegation that his records on Mowgli did not meet Bureau standards.*fn2
At the hearing before the Board, the Bureau called Dr. Yi to testify, as on cross.*fn3 Dr. Yi explained that he came to this country in 1971 and has been licensed by the Commonwealth to practice veterinary medicine since 1976. With respect to Mowgli, Dr. Yi testified that on July 31 he did a general physical examination, looking at Mowgli's "temperature, pulse, respiratory, eye, nose, ear, mouth, teeth, legs, abdominal, skin, everything that's a general thing." Notes of Testimony 10/10/06, at 12 (N.T. ___); R.R. 26a. The Bureau's counsel then reviewed Dr. Yi's medical records on Mowgli with Dr. Yi. The records described Mowgli's leg fractures; the gangrene; the splinting of the leg; the pain medications administered and prescribed; the possibility of an amputation; the follow up appointment for August 8, 2003; and the calls made by Dr. Yi to Masters when Masters did not return. When questioned by the Bureau, "[H]ow did you set the bone?," Dr. Yi answered "I cannot set the bone." N.T. 16; R.R. 30a. He explained that he applied "the plastic splint and stocking" to stabilize the leg and reduce Mowgli's pain but "not for healing or treating." N.T. 17; R.R. 31a. Dr. Yi testified that he recommended an x-ray of the leg and informed Masters that surgery was necessary. Dr. Yi conceded that his patient records did not record the findings of Mowgli's general physical; Masters' refusal of an x-ray; or Mowgli's overnight stay on August 21, 2003.
On redirect, by his own counsel, Dr. Yi again confirmed that he informed Masters, several times, that Mowgli's leg could not be repaired except by surgery and that an x-ray was necessary to determine what surgery, possibly amputation, was appropriate. Dr. Yi again explained that the splint was not intended to repair Mowgli's compound fractures but to give Masters the chance to get another opinion and to discuss the matter with her family. With respect to his patient records, Dr. Yi explained that in 2003, when he saw Mowgli, it had been his practice to record only abnormal findings. Accordingly, he did not record the results of Mowgli's general physical exam or his discussions with Masters. Dr. Yi also explained that in 2005, two years after he saw Mowgli, he settled a Bureau action brought against him for improper record-keeping by submitting his records to the Board for a period of six months; the Board had found them acceptable. Dr. Yi testified that it was his belief that his patient records made after 2005 have complied with Board regulations.
Next, the Bureau introduced the testimony of its expert witness, Christine M. Runnels, D.V.M., who also prepared an expert report for the Bureau. Her report stated that "unless Ms. Masters refused x-rays and appropriate fracture care, this case reflects incompetency and/or negligence." N.T. 93; R.R. 107a.*fn4 Dr. Runnels then testified that if Masters refused an x-ray, then Dr. Yi did not deviate from the prevailing standards of veterinary medical practice and, moreover, did not commit malpractice. Indeed, she testified that a veterinarian cannot force an owner to treat an animal. The Bureau questioned Dr. Runnels about the availability of financial assistance from rescue organizations, and she replied that she has never had any success with these organizations where, as in the case of Mowgli, the animal in need has an owner. Dr. Runnels testified that if Mowgli's owner refused to give permission for an x-ray or surgical repair, then the only options were amputation or euthanasia.
In addition, Dr. Runnels testified about Dr. Yi's splinting of Mowgli's leg. She explained that a splint is an acceptable way to stabilize a leg until a decision is made on whether to proceed with corrective surgery or amputation. Dr. Runnels testified that although she prefers analgesic drugs that are more expensive, the drug prescribed by Dr. Yi, phenylbutazone, is an appropriate analgesic, albeit painful when injected intramuscularly. Dr. Runnels stated that she would have advised Masters to return sooner than a week and that she also uses printed discharge instructions for the care of splints that are similar to those issued by Dr. Yi to Masters. Finally, Dr. Runnels testified that had Masters followed up with Dr. Yi on or before August 9, 2003, Dr. Yi may have been able to save Mowgli's leg.
Dr. Runnels listened to Dr. Yi's testimony regarding his treatment of Mowgli. Dr. Runnels stated that she had no reason not to believe his testimony that he did a general physical; offered to do an x-ray; and discussed a surgical repair, as well as amputation, with Mowgli's owner. She observed, however, that the results of Mowgli's physical and a recital of Dr. Yi's proposed treatment options that were discussed with, and refused by, Masters were not written down in Mowgli's records. In this respect, she explained, Dr. Yi's record-keeping did not comply with the Board's standards.
On May 10, 2007, the Board issued its adjudication. It held that Dr. Yi committed veterinary malpractice and violated the Board's record-keeping regulations. Specifically, the Board found in favor of the Bureau on three counts of alleged malpractice: failure to do a complete physical exam (Count II); failure to recommend or do repair surgery (Count III); and failure to repair Mowgli's fracture (Count IV). It also held that Dr. Yi's record-keeping on Mowgli did not meet the Board's regulations (Count VI). On the other hand, the Board found in favor of Dr. Yi on Count I (failure to offer or to take a radiograph) and Count V (failure to prescribe pain medication). Although the Bureau had recommended a two-year suspension to be served by probation under supervision of another veterinarian, the Board revoked Dr. Yi's license.
The present appeal followed.*fn5 Dr. Yi raises two issues for this Court's review.
First, Dr. Yi contends that the Board's findings of malpractice are not supported by substantial evidence and, indeed, in many cases are contrary to the evidence of record. For example, the Board based some of its factual findings upon a treatise authority, which was never discussed or referenced at the hearing, let alone admitted into evidence. Further, the Board's findings of malpractice were directly contradicted by the Bureau's expert, who testified that if Masters refused an x-ray and surgery, then Dr. Yi did not commit malpractice. All Dr. Yi could do, he argues, was try to protect the leg from further damage. The Board's response is that the Bureau's expert was not "helpful" and that it is free to draw on the knowledge and expertise of its professional members to make its findings relevant to malpractice. Board Brief at 9.
Second, Dr. Yi contends that the Board abused its discretion in revoking his license where the only violation that was proven was poor record-keeping. Dr. Yi argues that a revocation for a record-keeping violation is completely inappropriate because his record-keeping practices were fully addressed by the Board two years after the Mowgli incident and one year prior to the enforcement action at issue in this appeal.
As correctly observed by Dr. Yi, some of the Board's findings and discussion rely upon information and veterinary precepts that are nowhere in evidence. The Board acknowledges these lacunae in the record but contends that since "the Board includes members with expertise in veterinary medicine," the Board may draw the proper conclusions without expert testimony. Adjudication at 19; R.R. 185a. The Board misapprehends the extent to which it may put its administrative expertise to work. The Board may not substitute ...