Galvin v. Veterinary Medical Bd

Filed 5/23/06 Galvin v. Veterinary Medical Bd. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

This is an appeal by the California Veterinary Medical Board (appellant or Board) from a superior court judgment granting a petition for a writ of administrative mandamus to set aside the Board's decision to revoke the veterinary license and veterinary premises permit of Charles E. Galvin, DVM (respondent or Galvin). In a prior appeal (Charles E. Galvin, DVM v. Veterinary Medical Board State of California (Dec. 9, 2004, A104742) [nonpub. opn.]), this court reversed and remanded the judgment to permit the trial court to issue a statement of decision. In so doing, the trial court affirmed its earlier rulings in their entirety. In this appeal, the Board contends (1) the trial court failed to properly exercise its independent judgment; (2) the judgment is not supported by substantial evidence; (3) the trial court erred in reversing the administrative law judge's credibility determinations; and (4) the trial court erred in awarding attorney's fees on remand. We will reverse the judgment and remand to the trial court for further proceedings.

II. FACTUAL AND PROCEDURAL BACKGROUND[1]

A. The Administrative Proceedings

Kerry Barlogio, Nicole Wallace, Collette Bennett, Nichole Hoeppner, and Jennifer Bell worked in Galvin's veterinary clinic at various times between July 1993 and June 1999, principally as veterinary assistants. None had significant veterinary training or experience prior to being hired.

In 1999, after all of these employees had discontinued working at the clinic, they gathered together to discuss the difficulties they had experienced in working for Galvin. They decided to sue Galvin for work-related matters. They also lodged complaints against him with various regulatory agencies, including the Marin Humane Society. These complaints alleged a number of instances of animal abuse and cruelty, as well as violation of laws and regulations related to the practice of veterinary medicine and the maintenance of a veterinary clinic.

In December 2002, a six-day administrative hearing was held before an administrative law judge (ALJ). A number of witnesses testified for the Board and for Galvin.

The evidence demonstrated that Galvin has been a licensed, practicing veterinarian for 33 years. He has operated the Veterinary Hospital of Ignacio in Novato for the past 24 years. He has hundreds of loyal clients who have been bringing their animals to his clinic for years, and is well regarded by pet owners and breeders, as evidenced by a multitude of letters submitted by clients. He has the reputation of being particularly skilled at diagnosing illness in birds.

There was testimony regarding the restraint of animals and birds in order for a veterinarian to examine them and administer treatment. The appropriate restraining techniques vary depending on the level of resistance of the animal. When an animal is cooperative, it may only need to be held gently. With a resistant or struggling animal, the restraint must be more forceful to accomplish the purpose for the visit as well as to prevent injury to the animal, the veterinarian, and the staff. Veterinarians often have staff called holders who hold the animal while the veterinarian examines and treats the animal.

Ann Lesch-Hollis, DVM, testified as an expert witness for the Board on the standard of care in the practice of veterinary medicine in California and whether certain conduct amounts to cruelty to animals or unprofessional conduct. She stated that it is never appropriate to punish, threaten or frighten an animal because such conduct is not designed to restrain. She stated that a veterinarian must use the least force necessary to achieve the required restraint. It is never appropriate to choke an animal, she testified, because there are always less violent and less forceful techniques that can be used, and because choking an animal threatens and frightens the animal. In addition to petting, giving cookies to divert the animal's attention, and having one person divert the animal while another examines or provides treatment, Dr. Lesch-Hollis stated that owners of aggressive animals can be advised to give the animal a sedative before the appointment and to use a muzzle. With a very dangerous dog, one can put a slip-leash around its neck, thread the leash through the crack between a door and the door frame on the hinged side, and pull the dog's nose up to the crack, thereby immobilizing the dog's head and preventing it from being able to bite. With any use of a slip leash, the leash must be made of nylon or a smooth material so that the dog can relieve the pressure by discontinuing its resistance. It is never appropriate to use a leash made of rough material that will tighten around a dog's neck but will not immediately loosen when the dog stops pulling. She stated that it is not appropriate to hit an animal with either an open hand or a closed fist unless it is necessary in defending oneself from an attack. Hitting causes animals to be fearful, and there are almost always less forceful and violent means of restraint. To restrain a cat, one can hold it by the scruff of its neck with one hand and the scruff of skin at the base of its tail with the other hand. Another technique is to wrap the cat in a towel. Both of these techniques require one person to hold the cat while the other person examines and administers treatment. As with dogs, the cat's owner can administer a sedative prior to the appointment.

Galvin testified that he pets animals and gives them treats to obtain their cooperation. He said that on rare occasions it is necessary to use force to restrain a dangerous or unruly pet. Among the techniques Galvin said he uses are a muzzle, stretching a cat out on its side, taping a pet's front and rear feet together, forcing a pet into a corner to restrict movement, and swatting a pet with an open hand to startle the animal and get its attention. On rare occasions, when a cat becomes extremely violent, Galvin grabs it quickly, throws it into a cage, and deals with it later. On extremely rare occasions, when a large and powerful dog is being difficult, Galvin stated that he will hit the dog with a closed fist. Another technique Galvin uses on extremely rare occasions, when a dog is attacking him or when a fearful or unruly puppy is trying to bite him, is a choke hold to gain control and dominance over the dog. It is Galvin's opinion that it is appropriate to choke a dog to reduce its air supply until the dog becomes weakened. He estimated using a choke hold no more than three times out of every 10,000 examinations. Choking a dog often causes it to urinate and/or defecate and to become submissive. Galvin then pets the dog to reinforce the submissive behavior. When a dog is particularly resistant, Galvin may have to choke it a second time. Galvin opined that choking is a widely recognized veterinary technique, but stated that he did not learn the technique in veterinary school and has never read any textbook or journal article in which it was recommended. Galvin stated that he never uses more force than that necessary to restrain an animal.

Two of Galvin's former assistants, Collette Bennett and Nichole Hoeppner, testified regarding an incident involving a 150-pound Malamute dog in approximately January of 1999. They were holding the dog so Galvin could administer an injection. Nichole Hoeppner testified that she and Collette had trouble holding the squirming dog still. Galvin â€