Forgotten, But Not Gone: Some Veterinarians Have Gotten Through Hot Water And Kept Their Licenses

by | 03.07.2018 | 3:32pm

Some racetrack veterinarians have made headlines in unfortunate ways over the past few years. In 2015, Drs. Kevin Brophy, Fernando Motta, Christopher Korte, and Renee Nodine entered guilty pleas in federal charges of rigging publicly exhibited contests based on their administration of medications to horses within 24 hours of race time in Pennsylvania. In 2017, Dr. Kyle Hebert was found guilty in Louisiana on charges of conspiracy and misbranding of drugs related to his sale of dermorphin, an opioid reported to be more powerful than morphine. Also in 2017, Dr. Justin Robinson was named in a Texas Racing Commission hearing examining Class 1 positives in racehorses trained by AQHA champion conditioner Judd Kearl. In 2015, the Indiana Horse Racing Commission reached a settlement agreement with Dr. Ross Russell, who the commission claimed violated eight rules of racing related to medication on race day.

All of them still have active veterinary licenses, which means they are free to continue plying their trade.

How does veterinary regulation work?

A veterinarian working on the racetrack is subject to federal laws and state-level rules through the racing commission and the veterinary licensing board.

Veterinarians must follow Food and Drug Administration laws regarding safety, distribution and labeling of drugs (including misbranding, which was one of the areas which proved problematic for Hebert). The Drug Enforcement Administration governs use, handling, and record-keeping for controlled substances, including some used by veterinarians.

The license provided to veterinarians by state racing commissions allows them to practice on property under the commission's jurisdiction. Similarly to licensed grooms or trainers, a licensed veterinarian is required to adhere to all parts of state rules of racing in order to keep his racing license.

The veterinarian's license to practice veterinary medicine is separate from his or her racetrack license, and is handled by the state veterinary board – a completely different body from the racing commission. The board is comprised primarily of veterinarians, sometimes with one or two laypeople appointed to represent the perspective of the general public.

Each state has its own veterinary practice act establishing the veterinary board's existence and outlining requirements for licensure, a definition of a valid veterinarian-client-patient relationship (which must be established for treatment), along with procedures for investigation and disciplinary action.

“As is typical with anything that's regulated on a state-by-state basis like horse racing, the left hand doesn't always talk to the right hand,” said Kentucky attorney Joel Turner. “There may not be anything in a particular state's practice code that would say if you're convicted of a crime, you lose your license.”

The American Veterinary Medical Association has a model veterinary practice act (similar to ARCI model rules in horse racing), which is guided by comments from member veterinarians and the public. The model practice act is revised from time to time in an attempt to keep standards current with technology and innovations in practice.

When it comes to disciplining licensees, the AVMA model practice act lists 20 different types of behaviors that can result in the limit, suspension or revocation of a license. Among other things, those behaviors include failure to keep accurate patient records, failure to keep premises and equipment clean and sanitary, discipline of a license in another state, and extra-label use of a drug in absence of a valid veterinarian-client-patient relationship. The model act also states veterinarians can be subject to discipline for violations of state or federal drug laws, as well as conviction or plea of guilty to felonies, crimes related to animal cruelty/neglect, or “any crime of moral turpitude.”

Just like ARCI model rules though, some states' acts come closer than others to the suggested language. In Kentucky, the language and list are slightly different from the model act but do include a clause addressing “any act of dishonesty or corruption” including a crime, but states that “conviction in a criminal proceeding is not a condition precedent to disciplinary action.”

Other states, including Louisiana, require conviction in order to take action and are less specific about what type of legal trouble can land a vet in hot water with the licensing board. (Louisiana's act addresses “felony or other public offense involving moral turpitude.”)

The acts also lay out the proceedings for investigating an alleged violation. The board may take complaints from members of the public or other regulatory bodies, including lawyers. From there, the board staff will initiate an investigation and hold a hearing. The board may then issue its sanctions. In several veterinary practice acts we reviewed, the maximum fine that could be levied was $1,000, regardless of the offense.

As for actually revoking a license, it doesn't happen often.

“I think that's because there's a much less frequent occurrence among veterinarians where they're incarcerated or convicted of felonies. I'm really taxing my memory to try to come up with somebody,” said Turner.

How does veterinary discipline work in practice?

Veterinary boards aren't typically going out hunting for signs a licensee has violated their rules. Instead, they rely on someone to tell them when there may be a problem with a veterinarian.

“We find out about criminal matters generally through law enforcement agencies,” said Wanda Murren, Director of Communications and Press for the Pennsylvania Department of the State. “They know if they're dealing with a professional who has a license, they're supposed to notify the licensing entity, so we very often do learn about things like that from the law enforcement agencies. Sometimes we find out about things from the media and that might be the first clue we have that we need to take a look at something.”

Although there is no official policy on information sharing, racing officials in multiple jurisdictions confirm they will often take it upon themselves to alert the veterinary board to a racing commission action. Some say it's not always clear the veterinary boards welcome this information.

Rhea Loney, assistant state attorney general in Louisiana and counsel for the Louisiana Racing Commission, said she informs the veterinary board if she is aware of action against a licensee who violates the rules of the board.

“The way that it seems to work in Louisiana is early on when I was here we would reach out to the veterinary board when we would have an issue, and they would say something to the effect of, ‘If you guys have a proceeding against a veterinarian and you suspend or fine him, send us that information and we'll look at it and act at that point, potentially, depending on what it was,'” she said. “Usually I try to let these criminal things run through before we would reach out to the veterinary board. We'll contact the veterinary board and say ‘Are you aware of this?' and we'll make sure they have that information.”

Turner agreed that an arraignment or even a conviction isn't a guarantee the veterinary board will reach the same conclusion as prosecutors about a veterinarian's guilt.

“It's been my experience that these agencies are very reluctant to rubber stamp something that happens in the courtroom because they haven't had an opportunity to review the evidence themselves and they have an obligation to do so,” Turner said. “In many instances, because of the expense and whatnot, they allow that other body, whether it's a court or regulatory agency, to simply mete out the penalty they think is appropriate because they've seen all the evidence.”

Kyle Hebert's veterinary license was still active in Louisiana as of early 2018, despite a record that included a 2015 complaint alleging failure to establish a valid veterinary-client-patient relationship prior to prescribing a legend [prescription] drug, failure to maintain proper records, and allowing his office manager to prescribe drugs. Hebert had allegedly provided clenbuterol to a trainer in Alberta (where he is not licensed to practice) without properly establishing himself as the horses' veterinarian to be sure of why the medication was needed, then had his office manager get the drug directly in the hands of the trainer. Hebert was fined $1,000 and assessed a total of $1,500 for administrative costs by the board.

Loney anticipated submitting a report to the veterinary board after Hebert's sentencing in the federal case, which on Feb. 23 resulted in a $10,000 fine and 15 months in prison. His racing license has expired.

Even when veterinarians have their racetrack licensed revoked by the racing commission, the veterinary board may not be able to revoke its licensing. Drs. Nodine, Korte, Brophy, and Motta saw their racetrack licenses revoked in April 2015, days before they pleaded guilty on federal charges. The foursome still hold veterinary licenses in Pennsylvania because of a loophole in that state's practice act.

“Back when they entered their guilty pleas, our veterinary board staff started to proceed with disciplinary action,” said Murren. “They actually sent each of them what we call orders to show cause, which in a criminal case would be like the charging documents. These orders to show cause were sent out to the four people involved, and preliminary hearings were being scheduled.

“Then, someone became aware that the veterinary medical practice act in Pennsylvania does not allow us to take disciplinary action after a plea agreement, only after conviction. Then in another part of the practice act or court ruling or something, ‘conviction' was also interpreted to mean ‘sentencing.' So at that point, the orders to show cause were withdrawn, any hearings that were scheduled were continued. When they were withdrawn, they were withdrawn without prejudice, keeping open the possibility we could open something again.”

There is no sentencing hearing scheduled in any of the cases against those four veterinarians.

“It's not uncommon at all for all of our boards to wait and put off action until any criminal and civil action is entirely played out, because then the court record becomes a part of what the board looks at,” said Murren.

Murren said there have been nine veterinarians' licenses revoked since 2007 in Pennsylvania.

Florida's veterinary board has a bit more latitude to take disciplinary actions against racetrack veterinarians, because it does consider the action of another state's racing commission a violation of its practice act. Brophy's Florida license was put on probation for one year and he was charged over $1,000 in fines and administrative costs to the Florida board after they learned about the criminal case in Pennsylvania.

The Indiana Horse Racing Commission banned Dr. Ross Russell from racing licensure for nine years. (His Indiana veterinary license is shown as “probation/expired” on the board's website, with an expiration date of Oct. 2015). Russell also held a veterinary license in Florida, where the veterinary board levied a $1,000 fine and sentenced him to probation for the duration of his racetrack ban in Indiana. Russell does not have a racetrack license, but does have a practice about an hour north of Tampa Bay Downs.

“Racing Commission discipline is considered a possible violation under sections 474.214(10(b) and 474.214(1)(jj), F.S.,” said Kathleen Keenan, spokesperson for the Department of Business and Professional Regulation in Florida.

In many cases, veterinary boards face the same challenge as pharmacy boards: stepping too far over the line could tempt a lawsuit. Keenan said that since 2002, Florida's veterinary board has revoked five veterinary licenses in total. She denies that relatively low number is due to fear of legal retribution.

“Possible or existing civil action is not a factor in discipline by the Board of Veterinary Medicine,” she said.

If a penalty seems abnormally harsh however, Turner says it's an invitation for attorneys like him to negotiate on behalf of their client.

“I think what it comes down to in a lot of cases is the expense associated with it, the burdens of proof, the constitutional challenges that might be brought against the agency for a variety of reasons,” he said. “Quite frankly I don't agree with it, but it's kind of an expense factor that decides whether they pursue the claim.”

What can consumers do to research a veterinarian before hiring one? Look them up. In most states, the veterinary board's website will give the public the opportunity to verify a veterinarian's license, and the ability to see whether there have been administrative actions against that licensee. A consumer's access to information will also vary by location, however. In some cases, we found a formal Freedom of Information Act request was required to get documentation detailing administrative actions, or in the case of Louisiana, to learn if there had been any administrative action taken on a licensee at all.

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