Opinion

Teer v. State of Board of Veterinary Medicine

Court
Superior Court of Maine
Filed
Jan 21, 2020
Status
Unpublished
On the bench
William R. Stokes
Cited by
0 cases
Authority
More cited than 34.2%

The opinion

STATE OF MAINE SUPERIOR COURT

KENNEBEC, SS. CIVIL ACTION

DOCKET NO-AP-19-38

CYNTHIA TEER, D.V. M.,

Petitioner

DECISION AND ORDER

(M .R.Ci v.P .SOC)

V.

STATE BOARD OF

VETERINARY MEDICINE,

Respondent

INTRODUCTION

Before the court is the Petition for Judicial Review filed by Dr. Cynthia

Teer, D .V .M. from a written ruling of the State Board of Veterinary Medicine

(Board) granting Dr. Teer a suspended license to practice veterinary medicine

in the State of Maine, and also imposing sanctions upon her for four alleged

violations of the statutes and rules governing veterinarians. Dr. Teer seeks

judicial review of the Board's Decision and Order dated June 20, 2019 in

accordance with 5 M.R.S. § 11001 Maine Administrative Procedure Act and

M.R.Civ.P. SOC.

The court has examined the entire administrative record and has read

the memoranda of the parties, who have waived oral argument. The material

facts may be summarized as follows.

PROCEDURAL AND FACTUAL BACKGROUND

Dr. Teer was first licensed to practice as a veterinarian in Maine in

2002. In January, 2014, the Board issued a disciplinary decision against Dr.

Teer that required her to do certain things, including the submission to the

Board of patient records on a quarterly basis. In September, 2017, Dr. Teer

filed an application with the Board for the renewal of her license. In

December, 2017, the Board preliminarily denied the license because Dr. Teer

had failed to produce records as required by the previously issued disciplinary

order. The Board informed Dr. Teer that her failure to request a hearing within

30 days would result in the preliminary denial of her license application

becoming final. Dr. Teer did not request a hearing.

Dr. Teer received both written and verbal notice that the denial of her

license application had become final as of January 24, 2018. Nevertheless,

the Board found, and Dr. Teer did not dispute, that she continued to practice

veterinary medicine without a license from January 24, 2018 up to the date of

the hearing in this matter on May 22, 2019. In the meantime, on May 9, 2018,

Dr. Teer filed another application for licensure as a veterinarian, which was

also preliminarily denied in June 2018. Dr. Teer received notice that she did

not hold a valid license to practice veterinary medicine in Maine.

In August, 2018, the Superior Court preliminarily enjoined Dr. Teer

from engaging in any act constituting the practice of veterinary medicine. Dr.

Teer continued to practice as a veterinarian. In October, 2018, however, Dr.

Teer, the Board and the Office of the Attorney General entered into a Consent

Agreement, in which Dr. Teer admitted to practicing without a license and

engaging in actions that amounted to gross negligence, incompetence,

misconduct and/or violations of the code of ethics or the standard of practice

for veterinarians. She was reprimanded, required to pay a $10,000 civil

penalty and placed on probation for 5 years. Among other conditions, Dr.

Teer was required to engage the services of a "veterinary practice monitor

2

who shall monitor her veterinary practice." The practice monitor had to be

approved by the Board prior to Dr. Teer being granted a license.

Dr. Teer did not obtain the Board's approval for a practice monitor,

although she did seek to engage the services of someone to act as a monitor.

Accordingly, the Board did not issue Dr. Teer a license to practice as a

veterinarian. Dr. Teer continued to practice nonetheless. The Board's

investigator visited Dr. Teer's office in Machias during January 2019 and

found evidence that Dr. Teer was practicing veterinary medicine.

On January 22, 2019, the investigator filed a disciplinary complaint

against Dr. Teer on the basis that she continued to practice without a license.

In February, 2019, the Board continued to receive additional complaints that

Dr. Teer was practicing as a veterinarian. Also, in February the Board sent

written notice to Dr. Teer of the complaints against her and directed her to

respond and to produce patient records. Dr. Teer responded but provided no

records.

In March 2019, Dr. Teer sent a letter to the Board apologizing for

"misunderstanding" her obligations under the Consent Agreement. Dr. Teer

continued to practice, including performing surgery. Additional complaints

were filed against Dr. Teer in March and April, 2019. Although notified of

these complaints, and directed by the Board to respond to them and produce

patient records, Dr. Teer did not make any response to the Board.

In mid-April, 2019, a news station aired a story about Dr. Teer and her

failure to obtain a Maine license to practice as a veterinarian, all the while she

was actually practicing in that capacity. Dr. Teer complained that "[t]he

Board is at fault."

An adjudicatory hearing was held by the Board on May 22, 2019 on the

disciplinary complaint against Dr. Teer. Numerous witnesses, including Dr.

3

Teer, testified. At the conclusion of the evidence, the Board deliberated in

public and found that Dr. Teer had violated the statutes and rules governing

the practice of veterinary medicine in four particular respects, name Iy: (1) that

she practiced veterinary medicine after being informed by the Board and the

Superior Court that she did not hold a license; (2) that she "intentionally

misrepresented" the status of her veterinary license; (3) that she acted in a

capacity requiring a license after her license had expired, and; (4) that she

failed to produce patient records as required by the Board.

Also before the Board was Dr. Teer's application for a license filed in

March 2019. As a result of the May 22, 2019 hearing, the Board voted to

grant Dr. Teer' s license application and to impose sanctions for her violations.

The Board's findings and the sanctions and conditions it imposed are fully

described in its written Decision and Order dated June 20, 2019. Specifically,

Dr. Teer' s license was suspended for a total of 360 days (90 days for each of

the violations). The Board, however, agreed to stay one-half (180 days) of

the suspension, provided Dr. Teer met the following conditions:

(a) Completion of a mental health evaluation by a mental health

professional approved by the Board or its designee:

(b) The engagement of a practice monitor approved by the Board;

(c) Completion of 24 hours of continuing education, and;

(d)Appearance before the Board at its September 2019 meeting to

provide a progress report on her compliance with the conditions

described above.

Once Dr. Teer's license suspension has ended, she will be on probationary

status for 5 years with conditions that include the production of patient records

to the Board on a quarterly basis, pre-approval of the practice monitor,

4

mm1mum continuing education requirements and appearances before the

Board at least twice a year to provide progress reports.

Dr. Teer now seeks judicial review of the Board's Decision and Order

and the Board proceedings leading up to it.

STANDARD OF REVIEW

The Law Court has frequently reaffirmed the principle that judicial

review of administrative agency decisions is "deferential and limited."

Passadumkeag Mountain Friends v. Bd. of Envtl. Prot., 2014 ME 116, ~ 12,

102 A.3d 1181 (quoting Friends of Lincoln Lakes v. Bd. of Envtl. Prot., 2010

ME 18, f 12, 989 A.2d 1128). The court is not permitted to overturn an

agency's decision "unless it: violates the Constitution or statutes; exceeds the

agency's authority; is procedurally unlawful; is arbitrary or capricious;

constitutes an abuse of discretion; is affected by bias or error of law; or is

unsupported by the evidence in the record." Kroger v Departmental of

Environmental Protection, 2005 ME. 50, ! 7, 870 A.2d 566. The party seeking

to vacate a state agency decision has the burden of persuasion on appeal.

Anderson v Maine Public Employees Retirement System, 2009 ME. 134, ~ 3,

985 A.2d 501. In particular, a party seeking to overturn an agency's decision

bears the burden of showing that "no competent evidence" supports it. Stein

v. Me. Crim. Justice Academy, 2014 ME 82, ~ 11, 95 A.3d 612.

This court must examine "the entire record to determine whether, on

the basis of all the testimony and exhibits before it, the agency could fairly

and reasonably find the facts as it did." Friends of Lincoln Lake v Board of

Environmental Protection, 2001 ME. 18 ~13, 989 A. 2d 1128. The court may

not substitute its judgment for that of the agency's on questions of fact. 5

M.R.S. § 11007(3). Determinations of the believability or credibility of the

witnesses and evidence, supported by substantial evidence in the record,

5

should not be disturbed by this court. Cotton v Maine Employment Security

Commission, 431 A. 2d 637,640 (Me. 1981). The issue is not whether the

court would have reached the same result the agency did, but whether the

"record contains competent and substantial evidence that supports the result

reached" by the agency. Seider v. Board of Examiners of Psychologists, 2000

ME 206, ~ 8, 762 A.2d 551 quoting CWCO, Inc. v. Superintendent of

Insurance, 1997 ME 226, ~ 6, 703 A. 2d 1258, 1261.

DISCUSSION

A. The Questioning Conducted by the Hearing Officer

During the testimonial hearing before the Board, the Hearing Officer (a

lawyer) asked questions of two witnesses. She asked questions of Dr. Teer

without objection, and Cathy Neumann without objection until well into her

questioning, at which point counsel for Dr. Teer objected. The Hearing

Officer asked one final question after that. (A.R. at 254-55; 262-63).

Dr. Teer now claims that questioning witnesses by the Hearing Officer

was "plainly and flatly prohibited." Pet. 's Memorandum at 6. The court is

not convinced that questioning by a hearing officer in general is so plainly

forbidden, as claimed by Dr. Teer. Rather, asking clarifying and non­

prejudicial questions would seem to be consistent with a hearing officer's role

of regulating the course of the proceedings and, ultimately, preparing a draft

written decision on behalf of the Board. 5 M.R.S. § 9062(3). The court has

reviewed the questions asked by the Hearing Officer in this case and is

satisfied that they were clarifying questions within the scope of the witness'

prior testimony. Moreover, Dr. Teer can point to no prejudice of any kind

resulting from the Hearing Officer's questioning of the witnesses.

6

B. ''Reopening'' the Record

After the evidence was closed in Dr. Teer' s adjudicatory hearing, the

Board deliberated and voted to find the four violations alleged against Dr.

Teer. As the Board was deliberating on the question of sanctions and the

status of Dr. Teer's license, the Hearing Officer permitted the Board to hear

testimony from a witness who had familiarity with the Board's licensing

website and application process. Neither party objected.

Dr. Teer contends that this action by the Hearing Officer was a "gross

violation of her authority." Pet. 's memorandum at 8. The court disagrees.

Allowing the Board to consult with a staff member who could provide the

Board with accurate information as to the licensing consequences of its

potential decision, was not arbitrary and capricious. Rather, it is, in the court's

view, a reasonable exercise of the Hearing Officer's authority and

responsibility to regulate the course of the proceeding. Moreover, the parties

were offered the opportunity to ask their own questions of the witness, but

they declined to do so.

C. Bias and Lack of Im.p artiality

While the Board was deliberating as to the sanctions to be imposed on

Dr. Teer as a result of her violations and as conditions for the granting of her

license application, one Board member mistakenly referred to the Assistant

Attorney General prosecuting the case as "our counsel" with reference to the

recommendation she was making. The Hearing Officer promptly and clearly

reminded the Board that she was counsel for the Board, not the prosecuting

attorney.

Dr. Teer alleges that the Board member's confusion "clouds the entire

proceeding ..." Pet.'s Memorandum at 8. The court has reviewed the entire

record in this matter, particularly the evidentiary hearing of May 22, 2019.

7

The court is satisfied that the "confusion" by a Board member was just that ­

"confusion" - and not evidence of bias or partiality. Furthermore, Dr. Teer

did not make any motion to have either the Board member or the Hearing

Officer address the issue of whether they were biased pursuant to 5 M.R.S. §

9063(1).

D. "Intentional" Misrepresentation

Dr. Teer maintains that the Board lacked substantial evidence in the

record to find that she "intentionally" misrepresented the status of her

veterinarian's license. In the court's view, there was ample evidence before

the Board to support the conclusion that Dr. Teer deliberately misrepresented

the status of her license by performing veterinary medical services, including

surgery, for patients, without informing their owners that she was not licensed

to perform those services. The Board was not required to accept Dr. Teer' s

explanation that she did not understand the status of her license.

E. Basis for Sanctions

Dr. Teer argues that the Board's Decision and Order should be vacated

because it did not adequately explain the reasoning behind the imposition of

particular sanctions placed upon her. Title 5 M.R.S. § 9061 required the

Board to issue a written decision that included "findings of fact sufficient to

apprise the parties and any interested members of the public of the basis of

the decision." Citing Zegel v. Bd. ofSoc. Worker Licensure, 2004 ME 31,843

A.2d 18, Dr. Teer claims that she and the public must "speculate over the

reason why the Board chose to levy these particular sanctions." Pet. 's Reply

Memorandum at 4.

While an agency needs to set forth the basis for its decision with

reasonable clarity, it does not need to state the obvious. Here, the Board has

had an on-going disciplinary involvement with Dr. Teer since at least 2014.

8

There has been a lengthy history of Dr. Teer ignoring orders from the Board

and, more recently, the Superior Court. Notwithstanding her awareness of

those outstanding orders, Dr. Teer disregarded them and continued to engage

in the unlicensed practice of veterinary medicine in this State.

The Board's detailed written Decision and Order provided the factual

foundation for its rulings, including the particular sanctions it imposed. Those

factual findings themselves explain why the Board required a mental health

evaluation to ensure Dr. Teer's fitness to practice as a veterinarian. Similarly,

the reporting and continuing education requirements, as well as the practice

monitor obligations, all logically and rationally follow from the factual

findings the Board made.

The court finds no error in the manner in which the Board imposed

sanctions upon Dr. Teer.

CONCLUSION

The entry is:

Petitioner's (Dr. Teer's) Petition for Judicial Review is DENIED and

the Decision and Order of the State Board of Veterinary Medicine is

AFFIRMED.

The clerk is directed to incorporate this Order into the docket of this

case by notation reference in accordance with M.R.C' .P. 79(a).

Dated: January 21, 2020

Justice, Superior Court

9

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.