Navigating Complaints with the Texas Board of Veterinary Medical Examiners

Transcript

Narrator: 0:01

This podcast is for educational purposes only, does not constitute legal advice and does not create an attorney-client relationship. If you need legal assistance about a legal problem contact an attorney.

Cimone Murphree: 0:15

Thanks for joining us on another episode of Know your Regulator, the podcast that inspires you to engage. Today we welcome back the Texas Board of Veterinary Medical Examiners. We sit down with Staff Attorney Mark Lee and Executive Director Brittany Sharkey to discuss the veterinary complaint process. I know that one of the biggest things that license holders are probably curious about is the complaint process. Mark, as a staff attorney, can you kind of tell us about that complaint process and your role?

Mark Lee: 0:48

Sure, every complaint goes through about three steps to make sure that we’re doing our processes well. It comes in and we’ll go through a screening for whether there’s a potential violation we have jurisdiction right there’s some things that we just simply don’t regulate or whether, there’s a potential violation, we have jurisdiction right there’s some things that we just simply don’t regulate. Then we’ll have either a staff committee or a medical reviewer investigate or excuse me to evaluate the case to see whether any violations have occurred and whether it’s being recommended for enforcement, and then, finally, it comes over to the enforcement branch and there, of course, we look at things like is there sufficient evidence, what are the most important aspects of the case, and is this the kind of thing that we think is a real problem that needs priority, or is this a complaint about an individual that had one instance? Like I said, people make mistakes, so we try to prioritize cases that are going to affect the public most, of course, because that’s what our mission is.

Troy Beaulieu: 1:52

Yeah, I mean that completely makes sense. Kind of to follow up with what Simone was saying is do you have, you know, any thoughts for our viewers about kind of the more significant disciplinary infractions or violations that you run into? I mean, I know as a staff attorney your focus is kind of more on the cases that end up heading towards litigation, so maybe you could talk a few minutes just about what kind of the more serious issues are. I imagine the more minor ones gets resolved before they hit your desk.

Mark Lee: 2:27

Hopefully, and we do try to get each case resolved informally. We really try not to go to SOA if we don’t have to, because you know it’s again efficiency. You know it’s a lot of agency resources to take a case to SOA. And again, you know I can’t emphasize enough people make mistakes. If you can recognize it and take corrective action, that goes a long way towards resolving any issues. But we often will give someone a break, just like you know, doing a criminal case who makes a plea deal, they’re accepting responsibility. We recognize that and we give them a lighter or a less severe result because we recognize that they’re trying to make it right and we appreciate the fact that they’re saving our time and resources. And we appreciate the fact that they’re saving our time and resources and honesty is a big part of that. If you can’t accept that there’s a problem where you try to mislead us, that’s a real issue. And then the other cases that we see a lot that make an impression on us are the controlled substances case. With the increased staff we’re able to do more inspections now and sometimes it’s just a mismatch between records. They’re not very good at record keeping and we really try to make that an emphasis as well. Is this a record keeping issue? They’re just not logging things where they should. Or is this an issue of controlled substances going somewhere else, either for personal use, being sold, whatever diverting? So those are a big priority for us because it puts dangerous substances out in the marketplace.

Mark Lee: 4:10

I know some of our veterinarians. We have one staff veterinarian and that’s really our biggest handicap right now. We’ve got another staff attorney that’s really coming up to speed well and she’s really working hard, but the staff veterinarian has to do all the medical reviews, advise us. You know we have questions a lot of the time before we decide whether to pursue a case and how to pursue it, and then the preparation and testimony of the hearing. That takes a lot of time. So if we can get the case handled informally, then that’s the best result for everybody the least impact on the veterinarian, the most efficient resources and at the same time allows us to handle more cases, which means the public is protected. So that’s our preference.

Mark Lee: 4:57

And by the time, like I said, we basically have three levels of screening by the time we get a case to the state office administrative hearings. We’ve put a lot of time and effort into it and you can pretty much assume that we’ve got the goods. We don’t take these cases lightly. We don’t run to SOA every time we get a chance to, and so a license holder might want to seriously consider what options there are rather than going to a hearing because, as you’ve put in the past, they’re unlikely to hit a no-hitter. They’re unlikely to hit a no-hitter. We may not be able to prove to the judge’s satisfaction every violation, but we haven’t had a case yet where somebody’s walked away where we have not been able to prove at least the majority of our issues.

Troy Beaulieu: 5:42

I think that’s an excellent point. One thing just to clarify. I know we’ve been talking at several points about SOA and that is the State Office of Administrative Hearings. We call it SOA for shorthand. But to your point, mark, yeah, I think being an agency staff attorney going to these hearings is a lot like being a designated hitter you get a lot of at-bats. So you really have to think carefully as a licensee. If you see that agency bearing down and saying, yeah, I’m going to swing at this pitch because that’s all we all do all day long. So it tells me, as a defense attorney, I need to really be talking with my client and make sure they understand. These folks know what they’re doing, they’re knowledgeable and if they’re swinging at a pitch, there’s a reason for that. And, like you said, if we can work something out by agreement informally, that’s going to save everybody time and resources and the risk of going to court and maybe something worse, being recommended by the administrative law judge.

Mark Lee: 6:45

But it’s like Forrest Gump in this box of chocolates you never know what you’re going to get. A judge isn’t there, they haven’t seen what happened, so they’re going to have to listen to both sides and you know that’s their job to make those calls. One other thing I did want to point out about the benefits for licensees while working with us and making an informal settlement is whenever you have a full-blown case at the state office hearings, you get a result called a proposal for decision, which has detailed synopsis and factual findings about what occurred and that’s a permanent record of you know maybe some dirty laundry the licensee has that they don’t want to necessarily air. When we enter into these agreements, these agreed orders, we can tailor the agreement so that the public’s interest is protected, but it isn’t unnecessarily harsh or critical of the veterinarian and really just addresses the most important issues. So that’s another incentive for trying to get these resolved with the informal process. Yeah, that makes sense. Incentive for trying to get these resolved with the informal process.

Cimone Murphree: 7:50

Yeah, that makes sense. Oh, man, and I think that’s so important for license holders to know too. And thank you, mark, for you know kind of detailing that train of thought and the way that you guys think and view things in your perspective on resolving complaints. I am curious how many so it sounds like you guys don’t have a ton of cases go to SOA. Do you have like a number off the top of your head of how many make it there or get escalated to that point?

Brittany Sharkey: 8:26

So we actually it’s funny you should ask this. Timing is great we just closed out our fiscal year. Our fiscal year runs September 1 to August 31. And so we took about 21 cases to SOA last year and so that’s out of 600 complaints we received. So it is this very small minority of cases that end here and I think Mark did such a great job of outlining.

Brittany Sharkey: 8:50

We don’t want to be punitive, that’s not the board’s role. We are here to protect the public. Sometimes, you know, things go awry, things don’t go as planned. There are mishaps, and we’ve got to, we’ve got to act when those are brought to us. But you know we’re not out here hiding in your clinic trying to catch every time somebody doesn’t record a temperature on a medical record. But you know, in those 21 cases our staff attorneys and our legal team did an excellent job at representing the agency and in fact, even of those 21 cases that got filed at SOA, most of them still ended up settling before we got there, because I think the defense attorneys kind of realized hey, this is not an agency that’s just running to court. Every time something gets this far, you know they’re being very thoughtful, they’ve got the stuff to back it up, and so let’s see what kind of you know. Let’s leave this in the hands of ourselves and have some sort of self-determination over this, rather than putting it in the hands of a judge who you know, who knows Right?

Mark Lee: 9:48

Yeah, and that’s consistent with everything across the legal field. You find it’s very, very rare for a case to go to trial. These days, 90% or more cases settle. When I was in private practice, I had many cases I never thought would settle, but the judge would order us to go to a mediation or something and the great majority of the time that’s exactly what happened. It’s such a dice roll in terms of what you’re going to get. So even though we think we have the goods suppose we approve every violation we’ve alleged we still don’t know what the outcome is going to be, because there’s such a varied number of things that can be done and the judge may do something different than what we anticipated or asked for. Even so, the the certainty that you get by doing the agreed orders is something that’s a really good aspect of them as far as I’m concerned.

Troy Beaulieu: 10:39

Yeah, and you know, to kind of piggyback on what Brittany was saying about self-determination. Mark, I’m curious, being the person who ends up trying some of these more serious cases, the ones that can’t get resolved, what would you say to license holders, to listeners who are trying to improve the outcome of their complaint and put their best foot forward and try and get it resolved in the best way possible?

Mark Lee: 11:06

Well, I can’t give you all my secrets, but really, you know, be honest, right. That’s, I think, makes more impression on everybody, including us. If you tell the truth, we can’t always predict what the outcome is going to be, but if everyone knows what happened, then you usually lead to better results for everybody. And when you, when you, mislead, not only do we get upset, usually the judges do as well, and they don’t appreciate people, you know, not being truthful in their courtroom. So that would be the one thing I would say is just, you know, tell the truth, be honest. And you know we’re not the end, all and be all. That’s the judge’s, judges decision.

Mark Lee: 11:42

And so if you, if you bring the relevant issues to the judges, attention, cut out all the, all the you know excuses and and let’s just get it out there, there’s, there are the reasons we take cases, trials. People are either just completely unreasonable or there’s a legitimate dispute. You know, we may even agree on what happened, but we just can’t agree what the results should be, and we need someone to, you know, answer that question. So not every case has to necessarily be, you know, a big, big conflict. It’s really about getting a just result. And if we can’t agree on what that is, then we bring it to a third party and he’ll tell us what that is. Or she’t agree on what that is, then we bring it to a third party and he’ll tell us what that is, or she will tell us what that is.

Troy Beaulieu: 12:27

Sure, and I imagine with a lot of cases. Sometimes you’re dealing with pro se litigants who are representing themselves and other times you’re dealing with parties who’ve hired attorneys. Do you find it helpful if a veterinarian has an attorney representing them in front of the board?

Mark Lee: 12:47

Generally yes, because they understand the legal process. They don’t take it as personally. When I got a letter from the state bar that somebody complained against me, I was worried and offended that. Wait, what did I do wrong? They complain against me. I was, you know, worried and offended that wait, what did I do wrong, you know. So having that neutral third party to give you some advice that you can trust can be helpful. They’ll help you navigate the process and they often see things more neutrally and may help the veterinarian understand the different aspects of the case. So generally, I think it is very helpful for them to have some representation and somebody who can give them some good advice.

Brittany Sharkey: 13:30

Yeah. I think two lawyers. Of course we’re going to say that we like.

Troy Beaulieu: 13:36

Well, and I think one thing our experience has shown is that license holders often are under the mistaken impression that their licensing board is looking out for them and, while you’re not out to get anyone, your role is different, in that it’s public protection and that’s your duty and your obligation. So a lot of times I find that even the whether it’s the license holders or the public they have this slight misconception and it’s really y’all’s role is protecting the public, and so in that sense, we always encourage folks that it’s helpful to have an advocate, someone who can represent just them.

Mark Lee: 14:16

And in combination with that, you know we don’t want to lose good veterinarians. So if they understand the process and have a better experience when they have a complaint, that’s going to keep them motivated to work hard and do well and not think that everybody’s out to get them because we’re not. It’s simply a matter of, like you say, protecting the public and making sure that if they need some more education on something or need to learn how to keep records better, then that may be as simple as it is, and just having someone who can help them understand that this is not a career ending issue and help them navigate through this process can really be helpful to them and to us too. Right? If it’s smoother and more efficient, then that makes our job easier as well. So I’m not you know I’m not doing something that’s against my own interests. Right, it’s in everybody’s interest to have efficient resolution of complaints.

Cimone Murphree: 15:18

I know we had talked a little bit earlier about public commentary on TDLR website. I wanted to see are there any upcoming board meetings that you guys have scheduled?

Brittany Sharkey: 15:31

Sure. So our next. So we have quarterly meetings, so typically January, april, july and October, and typically we try and meet on the third Tuesday of those months. So hopefully kind of building in some consistency so folks can kind of schedule around. So our next meeting is scheduled for October 22nd and those meetings are held at 9 am at the TDLR North Campus in Central Austin over here and we also have live broadcasts. So if you can’t attend in person, you know you can still. You can either watch it live, you can watch the replay later, but we definitely encourage folks to attend either virtually or in person. We do also have options for virtual public comment if people want to comment on any agenda items. You know we really want to get that input from the public and our licensees. You know that’s that’s one of the best ways for people to engage with us and so we can know what we’re doing where we’re missing the mark or or meeting our mission.

Cimone Murphree: 16:31

Yeah, october 22nd, come, come see us. Mark your calendars. Yeah, and I love that there is a virtual option too. I just think that’s so helpful in such a I mean, yeah, it’s. It can be really hard to go travel 30, 45 minutes, you know, and carve a bunch of time out of your day, but it’s so much easier to put it up on your computer and, you know, be able to watch it from your office, your home, so that’s really neat. I’m glad that that’s an option. Yes, mark your calendars October 22nd. Thank you, mark and Brittany, again for joining us this afternoon. You guys have given us some really great conversation, given our viewers some amazing takeaways and awesome insights. So thank you again much.

Troy Beaulieu: 17:24

This is really great insights. I mean I love hearing about how people can get more involved in their regulator. I mean, that’s one of the main goals of this podcast. So it was great to have you on and appreciate the good conversation and thank you so much for all you do for the citizens of Texas.

Brittany Sharkey: 17:35

Well, thank you guys. Thanks for having us on and giving us this platform to chat about the wonderful work the agency does. We’ve got a great team, and Mark is a key part of that.

Mark Lee: 17:46

Thank you all so much.

Cimone Murphree: 17:48

Thanks. Y’all

Narrator: 17:49

Know your Regulator the podcast that inspires you to engage.