Stinnett v. Az Vmeb

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ADRIANNA STINNETT, Plaintiff/Appellee,

v.

ARIZONA STATE VETERINARY MEDICAL EXAMINING BOARD,
Defendant/Appellant.

No. 1 CA-CV 20-0219
FILED 2-18-2021

Appeal from the Superior Court in Maricopa County
No. LC 2018-000429-001
The Honorable Douglas Gerlach, Judge (Retired)

REVERSED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Mary DeLaat Williams, Michael D. Raine
Counsel for Defendant/Appellant

David G. Derickson PC, Phoenix
By David G. Derickson
Counsel for Plaintiff/Appellee
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MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge David B. Gass and Judge David D. Weinzweig joined.

B R O W N, Judge:

¶1 The Arizona State Veterinary Medical Examining Board
(“Board”) appeals the superior court’s order reversing the Board’s
disciplinary decision of Dr. Adrianna Stinnett for failure to use
“professionally acceptable procedures” in violation of A.R.S. § 32-2232(12)
and Arizona Administrative Code (“A.A.C.”) R3-11-501(1). For the
following reasons, we reverse the superior court’s order.

BACKGROUND

¶2 Stinnett is licensed to practice veterinary medicine in Arizona.
Late in the afternoon on August 14, 2017, Stinnett treated Rocky, an eight-
year-old male Labrador, at Pet Urgent Care. Earlier in the day, Rocky’s
owners had taken him to a different clinic, Shea Animal Hospital, and were
referred to Pet Urgent Care. The referring veterinarian recommended that
Rocky have exploratory surgery “tonight, if possible” because he had
ingested baby wipes a week earlier and had not eaten or had a bowel
movement for several days. According to Stinnett, that specific
recommendation was not conveyed to her, and after consulting with
Rocky’s owners, Stinnett decided to conduct a “barium series” procedure.
Based in part on her view of what the radiographs showed, she wanted to
see if the baby wipes would pass naturally.

¶3 The next day Rocky’s owners brought him back to Pet Urgent
Care. Stinnett sent the radiographs to another veterinarian and he
suggested surgery to “at least explore the abdomen.” At around 5:00 p.m.,
Stinnett performed the surgery. She removed the baby wipes and
discovered a tear in Rocky’s bowel. She suspected that intestine contents
had leaked into his abdominal cavity. Two days after the surgery, Rocky’s
owners took him to the veterinarian at Shea Animal Hospital. Based on his
declining condition, Rocky was referred to a third clinic. There, the
veterinarian determined Rocky was suffering from septic peritonitis.
Rocky’s owners decided to have him euthanized. After speaking to their

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veterinarian at Shea Animal Hospital about the services provided by Pet
Urgent Care, they filed a complaint with the Board against Stinnett.

¶4 The Board’s Investigative Committee submitted proposed
findings of fact, explaining that “postponing the surgery was a poor choice”
and if it had “been performed the night before, when it was expected to be
done, the outcome may have been different.” The Committee found
“possible violations of the Veterinary Practice Act occurred” and
recommended the Board find Stinnett committed gross negligence by
postponing the surgery. See A.R.S. § 32-2232(11); A.R.S. § 32-2201(10)
(defining gross negligence as “treatment of a patient or practice of
veterinary medicine resulting in injury, unnecessary suffering or death that
was caused by carelessness, negligence or the disregard of established
principles or practices”).

¶5 The Board conducted an informal interview and took
testimony from Stinnett and one of Rocky’s owners. See A.R.S. § 32-2234.
The Board ultimately decided Stinnett was not grossly negligent, but it
found discipline was appropriate because Stinnett failed to use
“professionally acceptable procedures” in violation of A.R.S. § 32-2232(12)
and A.A.C. R3-11-501(1) for misinterpreting the radiographs and missing a
blockage pattern. After explaining its findings of fact and conclusions of
law, the Board placed Stinnett on probation for one year, with the condition
that she complete four hours of continuing education “in the area of
radiographic interpretation focusing on the abdomen.” Stinnett moved for
a “rehearing or review” of the Board’s decision, asserting in part the
“evidence does not support the conclusion that [Stinnett] misinterpreted
the radiographs or failed to provide professionally acceptable services.”
The Board denied her request.

¶6 Stinnett appealed the Board’s decision to the superior court.
She argued the decision was not supported by substantial evidence, the
Board acted in an arbitrary and capricious manner, and A.A.C. R3-11-501(1)
is unconstitutionally vague. After hearing oral argument, the superior
court reversed the Board’s decision, reasoning that the Board misread the
statute and rule. Though the court found substantial evidence supported
the Board’s conclusion that “Stinnett misinterpreted radiographs and
missed a blockage pattern when treating” Rocky, the court ultimately
decided the Board’s discipline order could not stand because the court was
unable to determine the meaning of “professionally acceptable
procedures.” The Board timely appealed to this court.

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DISCUSSION

¶7 On appeal “we are not bound by the superior court’s
judgment because we review the same record.” Ritland v. Ariz. State Bd. of
Med. Exam’rs, 213 Ariz. 187, 189, ¶ 7 (App. 2006). We will affirm the Board’s
decision unless it is “not supported by substantial evidence, is contrary to
law, is arbitrary and capricious or is an abuse of discretion.” Id. (citing
A.R.S. § 12-910(E)). And we view the record in the light most favorable to
upholding the Board’s decision. Lewis v. Ariz. State Pers. Bd., 240 Ariz. 330,
334, ¶ 15 (App. 2016). Still, statutory interpretation is a question of law, and
we are not bound by the superior court’s or Board’s conclusions of law.
Siegel v. Ariz. State Liquor Bd., 167 Ariz. 400, 401 (App. 1991).

¶8 The Board was created “to protect the public from unlawful,
incompetent, unqualified, impaired or unprofessional practitioners of
veterinary medicine through licensure and regulation of the profession in
this state.” A.R.S. § 32-2207. Aside from adopting rules for “[m]inimum
standards of veterinary practice,” the Board is empowered to license,
investigate, and discipline veterinarians. A.R.S. § 32-2207(1), (2), (6), (8)(a);
see also A.R.S. § 32-2232 (listing 26 provisions describing “unprofessional or
dishonorable conduct”).

¶9 The Board may discipline a veterinarian for a “[v]iolation of
the ethics of the profession as defined by rules adopted by the board.”
A.R.S. § 32-2232(12). The Board’s administrative regulations provide more
direction:

Under A.R.S. § 32-2232(12), a veterinarian practicing under a
license or permit shall practice according to the following
standards of professional ethics, which are based on the
Principles of Veterinary Medical Ethics of the American
Veterinary Medical Association [(“Principles”)]. The breach
of any of the following standards constitutes grounds for
disciplinary action against a veterinary license or permit
under A.R.S. §§ 32-2232 and 32-2234.

1. A veterinarian shall show respect for the veterinarian’s
colleagues, the owner of an animal to whom veterinary
medical services are being provided, and the public through
courteous verbal or written interchange, considerate
treatment, professional appearance, professionally acceptable
procedures, and use of current professional and scientific
knowledge.

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A.A.C. R3-11-501(1). “[P]rofessionally acceptable procedures” is not
defined by statute or rule.

¶10 The Board argues the superior court erred in determining that
“professionally acceptable procedures” does not provide enough of a
standard on which the Board could base its discipline order. The court
explained that it did not find the phrase “professionally acceptable
procedures” unconstitutionally vague, or that it failed for lack of specificity.
Instead, the court reasoned that the phrase is “defined only by what is
stated in the Principles and not by a negligence standard of care or any
other standard.”

¶11 Stinnett argues that because the Board’s ethical rules are
drawn from the Principles, the phrase “professionally acceptable
procedures” is merely an aspirational goal for the veterinary profession.
She appears to acknowledge that the phrase creates an enforceable rule, but
still contends it fails to give notice of “what ‘procedures’ are covered by the
rule or what constitutes a ‘procedure.’” Though the Board’s rules could be
clearer, the lack of greater or perfect clarity does not render the rules
unenforceable. We enforce the plain language of an administrative rule if
it is reasonably understood to prohibit certain conduct. See Golob v. Ariz.
Med. Bd., 217 Ariz. 505, 513, ¶¶ 29–32 (App. 2008) (noting that the legislature
is not required to “define statutory terms with linguistic precision in order
to withstand a vagueness challenge.”) (citation omitted). In other words, if
the rules are not unconstitutionally vague, then we will not presume they
are unenforceable just because the Board could have used more precise
language. Id. Thus, the superior court’s unchallenged finding that
“professionally acceptable procedures” is not unconstitutionally vague
substantially undermines Stinnett’s arguments.

¶12 The Board’s rules should be interpreted to “further the
statutory policy contained in its enabling legislation.” Cooke v. Ariz. Dep’t
of Econ. Sec., 232 Ariz. 141, 144, ¶ 13 (App. 2013) (quoting Marlar v. State, 136
Ariz. 404, 411 (App. 1983)). We therefore interpret “professionally
acceptable procedures” to help the Board “protect the public from
unlawful, incompetent, unqualified, impaired or unprofessional
practitioners of veterinary medicine through licensure and regulation of the
profession in this state.” A.R.S. § 32-2207. We assume the Board “chose the
phrase advisedly.” Yarbrough v. Montoya-Paez, 214 Ariz. 1, 6, ¶ 19 (App.
2006). And the adopted standards may use general and broad terms.
Haggard v. Indus. Comm’n, 71 Ariz. 91, 101 (1950).

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¶13 This court has considered standards, framed in broad terms,
in other licensed professions and determined those provisions include
enough specificity to support discipline against the respective licensees. See
e.g., Ethridge v. Ariz. State Bd. of Nursing, 165 Ariz. 97, 104 (App. 1989) (“The
term ‘unprofessional conduct’ is a sufficient directive to guide the Board in
its exercise of the delegated discretion.”); Webb v. State ex rel. Ariz. Bd. of
Med. Exam’rs, 202 Ariz. 555, 561, ¶¶ 24–26 (App. 2002) (concluding that a
standard of “[a]ny conduct or practice that is or might be harmful or
dangerous to the health of the patient or public” was not unconstitutionally
vague); Golob, 217 Ariz. at 512, ¶¶ 27, 32 (declining to find
unconstitutionally vague a standard that allows discipline of “[a]ny
conduct or practice that is or might be harmful or dangerous to the health
of the patient or the public”); see also Angels Cremation & Burial, L.L.C. v.
Ariz. Bd. of Funeral Dirs. and Embalmers, No. 1 CA-CV 18-0439, 2019 WL
3430249, at *2 (Ariz. Ct. App., July 30, 2019) (concluding that a standard
prohibiting “disrespect for the deceased person . . . contrary to the
prevailing standards and practices of the profession in this state” was not
unconstitutionally vague) (citation omitted). Thus, we conclude that
A.A.C. R3-11-501(1) provides a permissible standard for which the Board
may fairly base its discipline orders against veterinarians who fail to
perform professionally acceptable procedures.

¶14 We also find the term “procedures” includes the actions here,
including radiograph interpretation and surgical assessments. See
Procedure, Merriam-Webster’s Collegiate Dictionary (11th ed. 2014) (“a
particular way of accomplishing something” or “a traditional or established
way of doing things”); Procedure, New Oxford American Dictionary (3d ed.
2010) (“An established or official way of doing something. . . . A series of
actions conducted in a certain order or manner.”). Whether Stinnett read
the radiographs consistent with what is considered professionally
acceptable was a factual dispute for the Board to resolve.

¶15 We next consider whether substantial evidence supports the
Board’s decision that Stinnett violated the “professionally acceptable
procedures.” If the record supports two conflicting conclusions, then
substantial evidence supports the Board’s decision for both conclusions.
Webster v. State Bd. of Regents, 123 Ariz. 363, 365–66 (App. 1979). A court
may not “function as a ‘super agency’ and substitute its own judgment for
that of the agency where factual questions and agency expertise are
involved.” DeGroot v. Ariz. Racing Comm’n, 141 Ariz. 331, 336 (App. 1984)
(citation omitted).

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¶16 After reviewing all documents submitted and hearing the
testimony presented at the informal interview, the Board concluded that
Stinnett failed to provide professionally acceptable procedures because she
misinterpreted radiographs and missed a blockage pattern. The record
supports this conclusion. Stinnett testified that she chose not to do surgery
because she wanted to explore other options, but several Board members
explained that the radiographs she took showed surgery was necessary and
should not have been delayed. Substantial evidence supports the Board’s
decision.

CONCLUSION

¶17 We reverse the superior court’s order and reinstate the
Board’s decision.

AMY M. WOOD • Clerk of the Court
FILED: AA

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