IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohamed Ali Hammad, V.M.D., :

: Petitioner :

:

v. : No. 2421 C.D. 2014 : Submitted: August 14, 2015
Bureau of Professional and : Occupational Affairs, State : Board of Veterinary Medicine, :

: Respondent :

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION BY SENIOR JUDGE COLINS FILED: September 10, 2015

Mohamed Ali Hammad, V.M.D., ( Petition er ), pro se , petitions for

review of the May 29, 2013 final order of the State Board of Veterinary Medicine

(Board) adopting the proposed adjudication and order of the Hearing E xaminer as

the final adjudication and order of the Board. In adopting the Hear ing Examiner ’s

proposed order, the Board assessed a civil penalty of $5,000, and suspended

Petitioner ’s veterinary license for two (2) years, stayed in favor of six (6) months

active suspension and eighteen (18) months of probation. Before this Court,

Pet itioner argues that he was denied an opportunity to present his case before the

Board. We concl ude that the Board followed proper procedure in adjudicating this

matter and that Petitioner was afforded due process of law. T herefore, we affirm

the order of the Board.2 On June 29, 2012, a prosecuting attorney for the Department of State

(Department) issued an eight (8) count order to show cause alleging that Petitioner

had violated t he Veterinary Medicine Practice Act 1 (Act) and regulations

promulgated by the Board pursuant to the Act. (Order to Show Cause, Counts ¶¶1

-

8 , Reproduced Record (R.R.) at 7a

- 18a .) The order to show cause alleged that

Petitioner violated the recordkeeping 2 and professional conduct regulations 3

1 Act of December 27, 1974, P.L. 995, No. 326, as amended , 63 P.S. §§ 485.1

- 485.33.

2 Section 22 of Chapter 31 of the Pennsylvania Code regulates Recordkeeping by veterinarians licensed under the Act and provides, inter alia :

Veterinary medical records serve as a basis for planning patient care and as a means of communicating among member s of the veterinary practice. The records furnish documentary evidence of the patient's illness, hospital care and treatment and serve as a basis for review, study and evaluation of the care and treatment rendered by the veterinarian. A veterinary medical record shall be kept in a problem

- oriented or similar format that allows any veterinarian, by reading the record, to proceed with the care and treatment of the patient and allow the Board or other agency to determine the advice and treatment recommended an d performed. This section does not apply to laboratory animal practice.

(1) Record required. A veterinarian shall maintain a separate veterinary medical record for each patient, herd or group, as appropriate, which accurately, legibly and completely refle cts the evaluation and treatment of the patient or patients. The veterinary medical record must identify the treating individual after each chart
entry.

*** (3) Minimum content of record. Production animal veterinarians shall comply
with all Federal record keeping requirements, including requirements in 9 CFR (relating to animals and animal products). Veterinary medical records for other
animals must include: (i) Vaccination history. (ii) Previous medical history, presenting symptoms and complaint. (iii) Date of each examination. (iv) Diagnosis. (v) Results and findings of pathological or clinical laboratory
examination. (vi) Findings of radiological examination. (vii) Medical or surgical treatment. (viii) Other diagnostic, corrective or therapeutic proced ures.3

promulgated by the Board, and was subject to discipline under Section 21(1) of the

Act for “[w]ilful or repeated violations of any provisions of this act or any of the

rules and regulations of the [B] oard ”; under Section 21(11) of the Act for

“[i] ncompetence, gross negligence or other malpractice, or the departure from, or

failure to conform to, the standards of acceptable and prevailing veterinary medical

practice, in which case actual injury need not be established”; and unde r Section

21(12) of t he Act for “[e] ngaging in practices in connection with the practice of

veterinary medicine which are in violation of the standards of professional conduct

as defined herein or prescribed by the rules of the board. ” 63 P.S. § 485.21(1),

( 11), (12); 49 Pa. Code §§ 31.22 (1)

, (3)

, (9) and 31.21(8)(e)

.

On July 19, 2012, Petitioner filed an answer denying each of the

allegations made in the order to show cause and requesting a copy of the complaint

(ix) Documentation of drugs administered, prescribed or dispensed, including dosage. (x) Documentation of surgical and dental procedures, including type and dosage of anesthesia, and dental charting.

*** (9) Veterinary medical records for vaccination clinics. A veterinarian providing veterinary medical services to the public for a public health vaccination clinic or an animal health vaccination clinic shall prepare a veterinary medical record that includes, at a minimum, an identification of the clien t and patient, the vaccine lot number, and the date and dosage administered. A veterinarian who provides veterinary medical services to a vaccination clinic shall provide a means for clients to obtain advice pertaining to postvaccine reactions for the 24

- h our period immediately following the time of vaccination.

49 Pa. Code § 31.22(1), (3), (9)

.

3 The Rules of Professional Conduct for veterinarians licensed under the Act provide under Principle 8, subsection (e) that “Veterinarians shall dispense or admin ister only drugs, including prescription drugs, that are within the expiration date specified by the manufacturer, and shall dispense or administer only drugs that will not expire within the prescribed treatment period.” 49 Pa. Code § 31.21(8)(e).4

made against him

, 4 as well as a hearing and the presence of t he complainant at the

hearing. (Respondent ’s Answer to Order to Show Cause, R.R. at 27a.) Petitioner

also filed a motion to dismiss on July 19, 2012 in which he stated that the

allegations were without foundation, that the prosecuting attorney for the

De partment ignored his February 20, 2012 letter to the Board explaining his good

faith error and the steps he has taken to bring his practice into compliance with the

Board’s regulations regarding use of unexpired medications, and that the

prosecuting attorn ey for the Department was acting out of prejudice because

Petitioner is Muslim. (Respondent ’s Motion to Dismiss, R.R. at 32a; Letter to

Investigator Larry Clinkscale, R.R. at 28a.)

On August 6, 2012, the Board issued an order denying Petitioner ’s

motion to dismiss and delegating the matter to a Hearing Examiner to conduct a

formal hea ring and to issue a proposed adjudication and order . (Board Order

08/06/12, R.R. at 41a.) On August 13, 2012, a Notice of Hearing for October 22,

2012 was mailed to Petitio ner . (Notice, R.R. at 43a.) On August 30, 2012, the

Department filed a motion for a continuance because its expert witness was

unavailable to testify on October 22, 2012. (Motion to Continue, R.R. at 45a.) On

September 14, 2012, the Hearing Examiner gr anted the Department’s request for a

continuance. (Order Continuing Hearing, R.R. at 51a.) On September 17, 2012,

Petitioner filed a Motion to Deny the Continuance and Petitioner mailed a letter to

the Hearing Examiner initially assigned to this matter s tating that he would not be

attending the hearing. (Letter to Hearing Examiner , R.R. at 44a.) On October 11,

4 Due process requires that Petitioner be given notice and an opportunity to be heard, as well as the opportunity to confront and cross

- examine adverse witnesses, but the Department is not required to provide Petitioner with a copy of the complaint that initiate d its investigation. Pastore v. Commonwealth, Insurance Department , 558 A.2d 909, 913

- 914 (Pa. Cmwlth. 1989).5

2012, a Notice of Rescheduled Hearing for November 19, 2012 was mailed to

Petitioner . (Rescheduled Notice, R.R. at 50a.)

The hearing was held b efore the Hearing Examiner on November 19,

2012. (Hearing Transcript (H.T.), Supplemental Reproduced Record (S.R.R.) at

31b

- 74b.) The Department presented the testimon y of Brenda Crosby, owner of a

female light brown Yorkshir e Terrier known as “Cinnamon” for which Petitioner

provided veterinary care ; Larry Clinkscale, investigator for the Department,

Bureau of Enforcement and Investigation ; and , as an expert in veterinary care,

Alan A. Kirkmayer, D.V.M.. (H.T. at 9, 25, 32, S.R.R. at 36b, 52b, 59b.) The

Department also admitted into evidence, inter alia , the health and vaccination

records of Cinnamon that Petitioner produced during the Department’s

investigation, a hand

- written letter on Petitioner ’s stationary addressed “to whom it

may concern” and sign ed by Petitioner that stated heartworm medicine could still

be effective up to 6 months after its expiration date, and an expert report prepared

by Dr. Kirkmayer. (H.T. at 32, 45, Exhibits F, G & K

, S.R.R. at 59b, 72b, 78b,

80b

- 83b, 87b.) Petitioner did not appe ar for or participate in the hearing before the

Hearing Examiner

.

On February 28, 2013, the Hearing Examiner issued a proposed

adjudication and order with findings of facts, conclusions of law, and a lengthy

discussion recommending that Petit ioner be subject to disciplinary action because

each allegation in the order to show cause was proven by substantial evidence.

( Hearing Examiner Proposed Adjudication and Order (A&O), S.R.R. at 4b

- 28b.)

On March 7, 2013, the Board issued a Notice of Inte nt to Review the proposed

adjudication and order and, on March 16, 2013, Petitioner filed exceptions to the

proposed adjudication and order and requested a hearing before the Board. (Notice6

of Intent to Review, R.R. at 60a; Respondent Brief, R.R. at 62a

- 6 3a; Letter

Request for Hearing, R.R. at 64a.) The Board issued its final order adopting the

proposed adjudication and order on May 29, 2013, including, inter alia , the

following findings of fact:

5. [ Petitioner ] examined a dog, Cinnamon, a female light brown Yorkshire terrier owned by Brenda Crosby, on an initial visit on March 16, 2011. (N.T. 11; Exhibit G)

6. Ms. Crosby brought Cinnam on to [ Petitioner ] for veterinary care for a possible ear infection. (N.T.10

- 11)

7. [ Petitioner ’s] veterinary med ical records for Cinnamon for March 16, 2011 do not contain a history, presenting problem or findings on physical examination, including weight or vital signs. (Exhibit G)

8. [ Petitioner ’s] veterinary medical records indicate “ear clean ing, ear
ointment ” for Cinnamon’ s March 16, 2011 appointment. (Exhibit G)

9. [ Petitioner ’s] March 16, 2011 veterinary medical records for Cinnamon do not contain the following:

a. A description of the underlying medical problem, which ear was being treated, history of the problem, suspected or known cause of the problem, the ointment used and the reason for the administration of Cephalexin;

b. A n evaluation of the patient, including the presenting problem, physical findings and treatment plan;

c. T he dosage and ins tructions for the use of Cephalexin;

d. T he name of the ear ointment, instructions for use and dosage;

e. T he signature or initials identifying the treating veterinarian;7 f. A vaccination history;

g. T he previous medical history; and

h. T he diagnosis.

(N.T. 37

- 40; Exhibits G and K)

10. On May 6, 2011, Ms. Crosby brought Cinnamon to [ Petitioner ] for her annual vaccinations. (N.T. 14; Exhibit G)

11. [ Petitioner ’s ] veterinary medical records for the May 6, 2011 appointment state that [ Pet itioner ] administered DHLLP, rabies and Lyme disease vaccinations, and dispensed “ H

- W tablet 28” and "Rymadyl [ 5 ] 1/4 BID.” (Exhibit G)

12. [ Petitioner ’s] May 6, 201 1 veterinary medical records for Cinnamon do not contain the following:

a) A description of the underlying medical problem for which Cinnamon was being seen and the reason for dispensing Rimadyl;

b) An evaluation of the patient, including the presenting problem, physical findings and treatment plan ;

c) The dosage and instruc tions for the use of Rimadyl;

d) The name and brand of the heartworm medication, strength, or instructions for use;

e) The duration of action of the vaccinations administered, when booster vaccinations are needed, and
the manufacturer an d/or lot number o f the vaccines;

[ 5 This is footnote No. 3 in the adopted findings of fact:] The correct spelling of the medication is Rimadyl [.]8 f) T he signature or initials identifying the treating veterinarian;

g) A vaccinat ion history;

h) A previous medical history; and

i) T he diagnosis.

(N.T. 40

- 41; Exhibits G and K)

13. A blood test is required prior to prescribing and dispensing heartworm medication to a dog to ensure that the dog is not i nfected with the parasite. (N.T. 40

- 41; Exhibit K)

14. [ Petitioner ] failed to perform a blood test or to ensure that a blood test was performed prior to p rescribing and dispensing h eart worm medication to Cinnamon. (N.T. 40

- 41; Exhibits G and K)

15. Rimadyl is a non

- steroidal anti

- inflammatory drug (NSAID). (N.T. 41; Exhibit K)

16. Blood work is required prior to prescribing Rimadyl to ensure that the dog is healthy before ad min istering the medication. (N.T. 41; Exhibit K)

17. Rimadyl can affect the bone marrow, liver, and kidneys of a dog,
and it is standard of care to do follow

- up blood work every six months if a dog is prescribed Rimadyl on a daily basis to make sure there a re no adverse effects. (N.T. 41 ; Exhibit K)

18. [ Petitioner ’s] veterinary medical records do not show any blood work prior to dispensing Rimadyl to Cinnamon, and fail to include a
recommendation for follow

- up blood work for Cinnamon. (N.T. 4I;
Exhibit s G and K)

19. The May 16, 2011 entry in [ Petitioner ’s] veterinary medical

records for Cinnamon indicated that “H

- W Tablet 28” was dispensed to Cinnamon’s owner. (N.T. 40; Exhibit G)9

20. Cinnamon’s owner identified the med ication as Tri

- Heart Plus
hear t worm medication, Lot # SD0758, with an expiration date of February 2011. (Exhibit H; N.T. 17)

21. The Tri

- Heart Plus heart worm medication that [ Petitioner ] dispensed to Cinnamon’s owner on May 6, 201 1 had surpassed the
manufacture’ s date of expiration. (N.T. 18; Exhibits H, I, L)

22. [ Petitioner ] stated [in writing] that heartworm medication “is 6 month package i.e. it is good after the expiration date for 6 month” (sic). (OSC, Exhibit B)

23. [ Petitioner ] stated [in writing] that “I consider a two month after the expiration date it doesn’t affect the potency of the heartworm medication (prevent the H.W.) as it is not antibiotic or had any potency to change.” (Exhibit F)

24. Medications that are beyond the manufacturer’s expiration date may lose their potency and stability or may undergo other detrimental changes that may affect the medication’s effectiveness and/or safety. (Exhibit K)

25. Medication dispensed to an animal must be within the expiration date not only at the time it is dispensed but for the entire treatment period for which the medication is to be used. (N.T. 42)

(A&O, Findings of Fact (F.F.) ¶¶5

- 25, S.R.R. at 4b

- 7b.) Petitioner petitioned this

Court for review. 6

6 Petitioner initially filed an appeal of the Board’s final order with the Philadelphia County Court

of Common Pleas (Common Pleas). O n October 21, 2013, Common Pleas issued an order transferring this matter to Commonwealth Court; however, a praecipe to transfer was not filed

and the ma tter remained dormant in the Common Pleas Office of the P rothonotary . On September 9, 2014, Petitioner filed a Petition for Review with this Court that was docketed at

No. 1587 C.D. 20 14 and was subsequently dismissed as duplicative of Petitioner ’s Common Pleas appeal. By October 29, 2014 order, this Court granted reconsideration of the dismissal and

directed the Board to effectuate transfer of the matter to Commonwealth Court. The Board filed a praecipe to transfer on November 12, 2014 and

, on December 1, 2014

, the matter was

transferred to this Cou r t and docketed at No. 2421 C.D. 2014.10 Petitioner argues that the procedure which led the Board to take action

against his veterinary license was in error and that he should have been given the

opportunity to present his case to the full Board rather than a Hearing Examiner

. 7

Under the Act, when the Department takes disciplinary action against

a veterinarian’s license by issuing an order to show cause, the procedure that it

follows is governed by the Administrative Agency Law 8 and the General Rules of

Administrative Practice and Procedure. 9 The General Rules of Administrative

Practice and Procedu re , often referred to as GRAPP, permit the Board to preside

over a disciplinary hearing or to designate a presiding officer to hold the hearing

and to issue a proposed report for the Board’s review. 10 The ultimate decision on

what, if any, action to take l ies with the Board; the Board may hold an additional

hearing, may make new findings of fact, may alter the sanctions recommended,

may reject the proposed report in its entirety, or may adopt the Hearing Examiner ’s

7 This Court’ s scope of review of an agency ’s adjudication is limited to determining whether constitutional rights were violated, whether errors of law were made, and wh ether necessary findings of fact are supported by substantial evidence. Nelson v. State Board of Veterinary
Medicine , 863 A.2d 129, 132 n.4 (Pa. Cmwlth. 2004). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Shrader v. Bureau of Professional and Occupational Affairs , 673 A.2d 1, 2 (Pa. Cmwlth. 1995). An agency’ s determination will be set aside if the agency has abused its discretion, exceeded its authority or misapplied the law. Ne lson , 863 A.2d at 132 n.4.

8 Act of April 28, 1978, P.L. 202, No. 53, as amended , 2 Pa. C.S. §§ 501

- 508.

9 1 Pa. Code §§ 31.1

- 35.251.

10 See, e.g., 1 Pa. Code § 35.123 (“Hearings will be held before the agency head or a presiding officer designated under Subchapter E (relating to presiding officers).”); 1 Pa. Code § 35.185 (“When evidence is to be taken in a proceeding, either the agency head or, whe n designated for that purpose, one or more of its members, examiners or other representative appointed according to law, may preside at the he aring.”); 1 Pa. Code § 35.187 (d etailing the authority delegated to presiding officers, including, inter alia , to submit proposed reports); 1 Pa. Code § 35.205 (d etailing the required contents of proposed reports).11

proposed report and order without alterati on. 11 The Act does not require the Board

to provide a licensed veterinarian with a hearing in which the licensed veterinarian

may directly address the full Board prior to the imposition of sanctions. Sections

24 and 25 of the Act, 63 P.S. §§ 485.24 (“Disc iplinary action authorized”) and

485.25 (“Procedure in disciplinary actions”).

In Petitioner ’s disciplinary matter , the Board issued an order

delegating the case to the Hearing Examiner for a hearing and the preparation of a

proposed report. The Board’s order stated that the hearing and the proposed report

would adhere to the requirements of the Administrative Agency Law and the

General Rules of Administrative Practice and Procedure. Following the Board’s

order, Petitioner received notice, once for the original hearing and again for the

rescheduled hearing

. Petitioner was informed of the allegations made by the

Department and that he had a right to an attorney, a right to present evidence, and a

right to challenge any evidence and cross

- examine any witn ess against him at the

11 As this Court stated in A.O. v. Department of Public Welfare , 838 A.2d 35 (Pa. Cmwlth. 2003):

Wh ile a fact finder’ s observation of the demeanor of a witness has traditionally been viewed as an important factor in determining credibility, administrative adjudicators are permitted to determine the credibility of testimony from the reading of a transcript. Administrative agencies often use a system of adjudication where a hearing examiner or presiding officer takes evidence and the ultimate fact finder is a board or commission, which has the power to make findings of fact based solely on a review of the record. See, e.g., Kramer v. Department of

Insurance , 654 A.2d 203 (Pa. Cmwlth. 1995) (presiding officer conducted an evidentiary hearing, but the adjudication was issued by t he Insurance Commissioner)[.] An adjudicative method where the ultimate decision in a case
is made by an administrative fact finder who did not hear the testimony does not deny a litigant due process of law.

A.O. , 838 A.2d at 38 n.5 (internal citations omitted); see also McDermond v. Foster , 561 A.2d 70, 72 (Pa. Cmwlth. 1989).12

hearing. 12 Each of the notices Petitioner received also stated that the General Rules

of Administrative Practice and Procedure would govern the disposition of the

counts alleged by the Department against Petitioner

.

Petitioner cho se not to appear at the hearing and chose not to

challenge the evidence against him or to cross

- examine the Department’ s

witnesses. It is clear from Petitioner ’s filings that he believed he should have and

ultimately would have an opportunity to go before the members of the Board,

which include fellow veterinarians and members of the public , and plead his case

directly to them

. H owever, Petitioner was repeatedly given notice that he was

mistaken and having received notice of his rights, the procedure that would be

followed, the allegations made against him, and the possible consequences for his

license to practice, Petitioner refused to engage in the disciplinar y proceedings

before the Hearing Examiner

. Petitioner ’s refusal to engage in the process he was

due does not amount to an error in that process or to a violation of Petitioner ’s

rights.

Accordingly, we affirm the order of the Board.

_______________ ______________________ JAMES GARDNER COLINS, Senior Judge

12 “Constitutional due p rocess is a flexible concept, and thus, implicates procedural protections as each particular situation demands.” Chester Water Authority v. Pennsylvania Public Utility

Commission , 868 A.2d 384, 391 (Pa. 2005) ; Gombach v. Department of State, Bureau of

Com missions, Elections & Legislation , 692 A.2d 1127 , 1129

- 30 (Pa. Cmwlth. 1997) . In administrative or quasi

-

judicial proceedings, including proceedings before the Board, the basic tenets of due process

— notice and an opportunity to be heard

— are mandated and a pply with a force equal to their application in judicial proceedings. See 2 Pa. C.S. § 504 ( “ No adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard. All testimony shall be stenographically recorded and a full and complete record shall be kept of the proceedings. ” ) ; Pennsylvania Bankers Association v. Pennsylvania Department of Banking , 956 A.2d 956, 965 (Pa. 2008).IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Mohamed Ali Hammad, V.M.D., :

: Petitioner :

:

v. : No. 2421 C.D. 2014

: Bureau of Professional and : Occupational Affairs, State : Board of Veterinary Medicine, :

: Respondent :

O R D E R

AND NOW, this 10 th day of September, 2015, the final order of the

Bureau of Professional and Occupational Affairs, State Board of Veterinary

Medicine in the above

- captioned matter is AFFIRMED.

_______________ ______________________ JAMES GARDNER COLINS, Senior Judge