in Re Jan H Pol Dvm

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

In re JAN H. POL, D.V.M.

BUREAU OF PROFESSIONAL LICENSING, UNPUBLISHED
December 19, 2019
Petitioner-Appellee,
V No. 344666
LARA Bureau of Professional
Licensing
JAN H. POL, D.V.M., LC No. 16-035858

Respondent-Appellant.

Before: LETICA, P.J., and GADOLA and CAMERON, JJ.

PER CURIAM.

Respondent, Jan H. Pol, appeals the order of the Board of Veterinary Medicine’s
Disciplinary Subcommittee (“petitioner”), operating under the auspices of the Department of
Licensing and Regulatory Affairs, Bureau of Professional Licensing, which imposed professional
probation with conditions because respondent violated MCL 333.16221(a) (negligence and
failure to exercise due care). We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Respondent is a licensed veterinarian. This Court earlier had occasion to observe that
respondent “operates a veterinary practice in Weidman, Michigan,” and also “has a reality
television show on a cable network.” Bureau of Health Care Servs v Pol, unpublished per
curiam opinion of the Court of Appeals, issued June 23, 2016 (Docket No. 327346), p 1 (“Pol
I”). In that case, this Court reversed a disciplinary action against respondent on the ground that
petitioner failed to establish a clear standard of care against which to evaluate respondent’s
practices. Id. at 9.

In this case, a viewer of respondent’s television program took issue with the manner in
which respondent performed an ovariohysterectomy procedure on a dog and filed an

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administrative complaint with petitioner. After an investigation, the Attorney General, on behalf
of petitioner, filed a complaint, alleging that respondent’s behavior constituted negligence under
MCL 333.16221(a) and incompetence under MCL 333.16221(b)(i). The factual basis for the
complaint was that respondent (1) failed to intubate the dog or place an intravenous catheter in
the dog during the surgical procedure, (2) failed to use an electronic monitoring device during
the procedure, (3) failed to request assistance finding the dog’s uterus during the procedure, and
(4) failed to wear a surgical cap, mask, and gown during the procedure. After the complaint was
filed, petitioner received an additional complaint from a horse’s owners, alleging that, in the
course of treating a laceration on the horse’s left hip, respondent failed to wear surgical gloves
and reduce the hair surrounding the wound. A second superseding complaint was filed in
relation to this complaint, again alleging violations of MCL 333.16221(a) and MCL
333.16221(b)(i). Respondent filed an answer in which he requested a hearing and the dismissal
of the superseding complaint.

A hearing on the second superseding complaint was conducted over several days before
an administrative law judge. The administrative law judge took extensive testimony, including
from several experts, and issued a 53-page proposal for decision (“PFD”). The PFD contained a
summary of the testimony at the hearing, a list of exhibits admitted at the hearing, findings of
fact, conclusions of law, and analysis of facts and law. The administrative law judge also made
credibility determinations. Specifically, the administrative law judge found that the testimony of
veterinarians James Havenga and Robert van Wessum was more credible than the testimony of
veterinarians Joseph Kline and Lisa Zeppa. The administrative law judge concluded that
petitioner failed to prove by a preponderance of the evidence that respondent was negligent or
incompetent in his care of the dog or the horse and that respondent should not be subject to
sanctions. The administrative law judge recommended that the proposed findings of fact and
conclusions of law be adopted by petitioner.

Petitioner adopted the PFD in part and rejected it in part by concluding that there was
adequate evidence that respondent violated MCL 333.16221(a) based on “[r]espondent’s failure
to intubate the dog during the procedure, failure to wear a surgical mask and gown during the
procedure, and failure to clip the hair around the horse’s wound prior to suturing the
wound . . . .” In so holding, petitioner relied on the testimony of Dr. Kline and Dr. Zeppa, which
it deemed credible. Petitioner also found that Dr. Kline’s testimony reflected his understanding
of the correct standard of care.

Petitioner then entered a final order, placing respondent on probation for “a minimum of
one day, not to exceed one year” and directing respondent to pay all costs incurred in complying
with the terms of petitioner’s order and to comply with the Public Health Code. The order
provided that respondent would be discharged from probation upon complying with the order
and successfully completing continuing education “in the areas of small animal surgical
preparation and monitoring and small/large animal aseptic technique.” This appeal followed.

II. ISSUE PRECLUSION

Respondent first argues that petitioner erred by declining to give preclusive effect to this
Court’s conclusion in Pol I. According to respondent, the doctrine of collateral estoppel should
have precluded petitioner from relitigating whether respondent’s failure to wear a mask and

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gown during the ovariohysterectomy procedure constituted a failure to adhere to the proper
standard of care. We disagree.

The application of collateral estoppel presents a question of law subject to de novo
review. Rental Props Owners Ass’n v Kent Co Treasurer, 308 Mich App 498, 526; 866 NW2d
817 (2014). Collateral estoppel precludes relitigation of an issue in a different, subsequent action
between the same parties or their privies when the earlier proceeding resulted in a valid final
judgment and the issue in question was actually and necessarily determined in that prior
proceeding. See People v Gates, 434 Mich 146, 154; 452 NW2d 627 (1990); 1 Restatement
Judgments, 2d, § 27, p 250. The doctrine bars relitigation of issues where the parties had a full
and fair opportunity to litigate those issues in an earlier action. Arim v Gen Motors Corp, 206
Mich App 178, 195; 520 NW2d 695 (1994).

In Pol I, petitioner filed an administrative complaint against respondent, alleging that he
violated the Public Health Code, in part, by failing to wear a cap, mask, or gown, when
performing eye surgery on a dog. Pol I, unpub op at 1-2. After a contested hearing, the hearing
officer issued a PFD, concluding that respondent violated MCL 333.16221(a) and (b)(i). Id. at 2.
Petitioner adopted the PFD and placed respondent on probation, fined him, and ordered him to
take continuing education classes. Id. On appeal, this Court held that petitioner’s decision was
not supported by competent, material, and substantial evidence on the whole record. Id. at 4. In
relevant part, this Court held that “[t]he evidence submitted [did] not establish a clear standard of
care that respondent violated.” Id. at 9. Because this Court concluded that the record did not
support that Dr. Pol was negligent in his care of the dog, this Court remanded the matter with
instructions to dismiss the complaint. Id. at 9.

In urging application of collateral estoppel, respondent argues that “[t]his Court’s holding
in Pol I should estop [petitioner] from re-litigating whether [respondent] was negligent here by
not wearing a mask and gown on a dog surgery that occurred three years prior to Pol I.” In
rejecting the invocation of collateral estoppel in the instant case, the administrative law judge
explained as follows:

[The Court in] Pol [I] did not make the “. . . conclusive determination that the
minimum standard of care was satisfied by Dr. Pol in 2011 . . .” as the
Respondent claims, but rather ruled that the Petitioner did not establish that Dr.
Pol violated the standard of care in that case. There is nothing about the
Petitioner’s failure to meet their burden of establishing the standard of care in
2011 as noted in the 2016 decision that precludes the Petitioner from filing similar
allegations in this matter and attempting to establish the standard of care for a
veterinarian in 2013 when the care of [the dog at issue in this case] took place. In
addition to the events occurring in two different years, there were two different
types of surgeries. It cannot be said that the same issue of fact has already been
litigated with a decision on the merits and therefore estoppel does not apply.

The administrative law judge’s reasoning was sound. In the earlier appeal involving
these parties, this Court did not conclude as a matter of law and fact that no authoritative
standard of care relating to veterinary surgical attire existed. Rather, this Court held that the
record in Pol I brought no standard to light, which undercut any allegation that respondent had

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violated any such standard. See Pol I, unpub op at 9. That result stemmed from the procedural
posture of that issue as developed in Pol I. Pol I did not prevent petitioner from endeavoring to
establish the relevant standard in a subsequent case arising from different events. Importantly,
our Supreme Court has observed that courts are reluctant to apply claim preclusion doctrines
when questions of law are involved and where the earlier and later causes of action do not arise
from the same subject matter or transaction. Young v Edwards, 389 Mich 333, 339; 207 NW2d
126 (1973). We conclude that what, if any, standard of care applies in relation to veterinary
surgical attire is a question of law and that Pol I and the case currently before us concern
different animals and surgical procedures. For these reasons, respondent’s argument that the
doctrine of collateral estoppel applies is without merit.

III. UNOFFICIAL TRANSCRIPTS

Respondent argues that petitioner denied him his right to constitutional due-process1 by
refusing to supplement the official record with transcripts of March 2018 and June 2018
meetings that petitioner held when deciding respondent’s case. According to respondent,
because of petitioner’s “tactics,” the transcripts are excluded as part of the agency record on
appeal under MCR 7.210(A)(2). We conclude that the law of the case doctrine bars us from
considering respondent’s argument.

The law of the case doctrine holds “that a ruling by an appellate court on a legal question
binds the appellate court and all lower tribunals, and the question may not be differently
determined in the same case where the facts remain materially the same.” Bruce Twp v Gout,
207 Mich App 554, 557; 526 NW2d 40 (1994). “The primary purpose of the doctrine is to
maintain consistency and avoid reconsideration of matters once decided during the course of a
single continuing lawsuit.” Ashker ex rel Estate of Ashker v Ford Motor Co, 245 Mich App 9,
13; 627 NW2d 1 (2001).

In a December 7, 2018 order, this Court granted petitioner’s motion to strike respondent’s
initial brief on appeal because it relied on “unofficial transcripts . . . prepared by a court reporter
hired by [respondent].” In re Jan H Pol, DVM, unpublished order of the Court of Appeals,
entered December 7, 2018 (Docket No. 344666). In doing so, this Court held the following:

Those [unofficial] transcripts cannot reasonably be considered documents or files
of the Disciplinary Subcommittee so as to be part of the record under MCR
7.210(A)(2) where it is manifest they were not prepared pursuant to established
procedures of the Disciplinary Subcommittee and do not include transcription of
testimony. They are also plainly not opinions or orders of the Disciplinary
Subcommittee. Other provisions cited by appellant do not reasonably support
treating the unofficial transcripts in question as part of the record. [Id.]

1
See US Const, Am XIV, § 1; Const 1963, art 1, § 17.

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 Thus, this Court declined to consider the unofficial transcripts on appeal because they
were not part of the record under MCR 7.210(A)(2). This Court’s decision now stands as the
law of the case, and we decline to consider respondent’s appellate objections any further.

IV. SUFFICIENCY OF THE FINAL ORDER

Respondent argues that petitioner’s final order was deficient because it did not satisfy the
requirements of Mich Admin Code, R 338.1630(4) and Rule 338.1630(5). We disagree.

Rule 338.1630 provides, in relevant part, the following:

(4) After reviewing the findings of fact and conclusions of law, the
disciplinary subcommittee . . . may make revisions. In making revisions, the
disciplinary subcommittee . . . shall specifically identify those portions of the
findings of fact or conclusions of law, or both, that it is modifying or rejecting and
identify evidence from the record that supports its revisions.

(5) A disciplinary subcommittee . . . in its final order, may adopt, modify,
or reject, in whole or in part, the opinion or proposal for decision of the
administrative law judge. If the disciplinary subcommittee, board, or task force
modifies or rejects the opinion or proposal for decision, the reasons for that action
shall be stated in the final order.

In this case, the final order stated that petitioner adopted the PFD in part and rejected it in
part by concluding that there was adequate evidence that respondent violated MCL 333.16221(a)
insofar as respondent failed to intubate the dog or wear a surgical mask or gown during the
ovariohysterectomy procedure. Petitioner also concluded that there was adequate evidence that
respondent violated MCL 333.16221(a) by failing to clip the hair surrounding the horse’s wound
before treating it. Petitioner noted that the record supported that the horse had a long winter coat
at the time respondent treated the horse’s wound. Petitioner then cited the testimony of Dr. Kline
and Dr. Zeppa, who offered opinions consistent with petitioner’s conclusions. Petitioner also
cited “the personal experience and expertise of [its] members.” Thus, petitioner stated its
reasons for rejecting the administrative law judge’s proposal and provided facts to support its
decision in compliance with Rule 338.1630(4) and Rule 338.1630(5). Nothing in the language
of the rules demands extensive analysis detailing the reasoning behind the modifications. See
Detroit Base Coalition for the Human Rights of the Handicapped v Dep’t of Social Servs, 431
Mich 172, 185; 428 NW2d 335 (1988) (recognizing that, when interpreting the language of
administrative rules, courts consider the rule’s plain meaning). Because petitioner adequately
specified its departures from the PFD, we conclude that respondent’s argument that the final
order was deficient is without merit.

V. VIOLATION OF THE PUBLIC HEALTH CODE

Respondent argues that petitioner’s final order is not supported by competent, material,
and substantial evidence. We disagree.

A. STANDARD OF REVIEW

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 “A final agency decision is subject to court review but it must generally be upheld if it is
not contrary to law, is not arbitrary, capricious, or a clear abuse of discretion, and is supported by
competent, material evidence on the whole record.” Vanzandt v State Employees Retirement Sys,
266 Mich App 579, 583; 701 NW2d 214 (2005). See also Const 1963, art 6, § 28.

A court must review the entire record, not just the portions that support an agency’s
findings, when assessing whether the agency’s decision was supported by competent, material,
and substantial evidence on the whole record. Dep’t of Community Health v Risch, 274 Mich
App 365, 372; 733 NW2d 403 (2007). “Substantial evidence” means evidence that a reasonable
person would find acceptably sufficient to support a conclusion. Id. This may be substantially
less than a preponderance of evidence, but does require more than a scintilla of evidence. Id.
The Risch panel further observed:

Moreover, if the administrative findings of fact and conclusions of law are based
primarily on credibility determinations, such findings generally will not be
disturbed because it is not the function of a reviewing court to assess witness
credibility or resolve conflicts in the evidence. A reviewing court may not set
aside factual findings supported by the evidence merely because alternative
findings could also have been supported by evidence on the record or because the
court might have reached a different result. [Id. at 372-373 (citations omitted).]

“Under th[e] test, it does not matter that the contrary position is supported by more
evidence, that is, which way the evidence preponderates, but only whether the position adopted
by the agency is supported by evidence from which legitimate and supportable inferences were
drawn.” McBride v Pontiac Sch Dist (On Remand), 218 Mich App 113, 123; 553 NW2d 646
(1996). “[A]n appellate court must generally defer to an agency’s administrative expertise.”
Dep’t of Comm Health v Anderson, 299 Mich App 591, 598; 830 NW2d 814 (2013).

B. GOVERNING LAW

Petitioner determined that respondent violated MCL 333.16221(a). MCL 333.16221
provides, in relevant part, the following:

The disciplinary subcommittee shall proceed under section 16226 if it
finds that 1 or more of the following grounds exist:

(a) . . . a violation of general duty, consisting of negligence or failure to
exercise due care, including negligent delegation to or supervision of employees
or other individuals, whether or not injury results, or any conduct, practice, or
condition that impairs, or may impair, the ability to safely and skillfully engage in
the practice of the health profession.

As used in MCL 333.16221(a), “[n]egligence is a well-recognized legal concept which
describes conduct that falls below a standard of reasonable or due care.” Sillvery v Bd of Med,
145 Mich App 681, 686; 378 NW2d 570 (1985). “A failure to exercise due care contemplates an
abdication of responsibilities or carelessness in executing one’s duties.” Id.

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 MCL 333.16231 authorizes the issuance of a complaint against a licensee for an alleged
violation of MCL 333.16221, and MCL 333.16231a provides for a hearing on the complaint
before a hearing examiner. The hearing examiner “shall determine if there are grounds for
disciplinary action under section 16221. . . .” MCL 333.16231a(2). The hearing examiner must
“prepare recommended findings of fact and conclusions of law for transmittal to the appropriate
disciplinary subcommittee.” MCL 333.16231a(2). “In imposing a penalty . . . a disciplinary
subcommittee shall review the recommended findings of fact and conclusions of law of the
hearings examiner.” MCL 333.16237(1). MCL 333.16237(3) provides that

[i]n reviewing the recommended findings of fact and conclusions of law of the
hearings examiner and the record of the hearing, a disciplinary subcommittee may
request the hearings examiner to take additional testimony or evidence on a
specific issue or may revise the recommended findings of fact and conclusions of
law as determined necessary by the disciplinary subcommittee, or both. A
disciplinary subcommittee shall not conduct its own investigation or take its own
additional testimony or evidence under this subsection.

MCL 333.16237(4) provides:

If a disciplinary subcommittee finds that a preponderance of the evidence
supports the recommended findings of fact and conclusions of law of the hearings
examiner indicating that grounds exist for disciplinary action, the disciplinary
subcommittee shall impose an appropriate sanction. . . . If the disciplinary
subcommittee finds that a preponderance of the evidence does not support the
findings of fact and conclusions of law of the hearings examiner indicating that
grounds exist for disciplinary action, the disciplinary subcommittee shall dismiss
the complaint. A disciplinary subcommittee shall report final action taken by it in
writing to the appropriate board or task force.

When a disciplinary subcommittee finds the existence of one or more of the grounds set
forth in MCL 333.16221, the subcommittee is authorized under MCL 333.16226 to impose
various sanctions against the licensee. And MCL 333.16226(2) provides:

Determination of sanctions for violations under this section shall be made by a
disciplinary subcommittee. If, during judicial review, the court of appeals
determines that a final decision or order of a disciplinary subcommittee prejudices
substantial rights of the petitioner for 1 or more of the grounds listed in section
106 of the administrative procedures act of 1969, 1969 PA 306, MCL 24.306, and
holds that the final decision or order is unlawful and is to be set aside, the court
shall state on the record the reasons for the holding and may remand the case to
the disciplinary subcommittee for further consideration.

C. ANALYSIS

In this case, after considering the whole record, we conclude that expert testimony
presented at the hearing was sufficient to establish that there was an applicable standard of care
that respondent breached.

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 At the contested hearing, Dr. Kline testified that he is a licensed veterinarian and that he
has been practicing in Michigan since 1994. Dr. Kline testified that he primarily treats small
animals but that he occasionally treats horses in his veterinary practice. Dr. Kline opined that the
relevant standard of care can be established by reviewing the relevant veterinary medical
literature. He further opined that the standard of care does not vary depending on economic
circumstances or location within the state.

When asked about intubating an animal during an ovariohysterectomy procedure, Dr.
Kline testified that “as a universal thing the airway needs to be protected when . . . the animal is
unconscious” because “if you have an emergency occur and you don’t have that tube in place
there that patient, no matter how low the percentage is of it happening, is out of luck.” Dr. Kline
attributed that opinion to “the standard of care that’s promulgated in surgery
lectures . . . textbooks, the monographs on surgery[,] and . . . scientific articles in peer-reviewed
credible journals.” Dr. Kline also testified that respondent’s failure to intubate the dog during
the ovariohysterectomy procedure violated the standard of care because “having an unprotected
airway is an unsafe practice.”

When asked about surgical attire, Dr. Kline responded as follows:

Asepsis is a principal [sic] that’s been worked out in the last 120 years and
the point of covering up your head, your mouth, your hands and your street
clothing when you’re in an operating room is so you don’t contaminate the
patient. . . . You may have no hair on your head but you still have skin and your
skin is flaking off cells all the time into the operative field. These animals can
survive this most of the time but I would argue that it’s not in their benefit when
you can prevent this, so you cover you[r] bare skin up so you’re not dropping skin
flakes on them. Hair is an excellent wick for all kinds of bacteria and everything
in the world comes out of people’s mouths and it does not belong in the abdomen
of an animal so you cover up with these things.

Dr. Kline testified that “[w]hen opening a body cavity it is essential to have a . . .mask
and gown that are sterile” and that respondent was negligent and failed to meet the standard of
care for failing to wear a mask and gown. With respect to whether respondent violated the
standard of care when treating the horse, Dr. Kline testified that “you cannot evaluate the extent
of a wound without visualizing it and if it’s covered with fur . . .you’re not going to be able to
clean it adequately . . . .” Based on this, Dr. Kline opined that respondent failed to meet the
standard of care for not having reduced the hair around the horse’s wound.

Dr. Zeppa, a veterinarian who had been licensed in Michigan since 1999, testified that
her veterinary practice mainly focuses on horses and goats. Dr. Zeppa opined that respondent
failed to meet minimal standards when treating the horse at issue for a laceration. Dr. Zeppa
explained that reducing the hair “is done before closure so that you can gain good access to
inspecting the wound so you don’t miss any other small wounds that might be there,” and also to
“get a better assessment of how deep and/or how big the wound may or may not be.” Dr. Zeppa
opined that the standard of care called for clipping the hair around the wound and supported this
opinion by referring to excerpts from a textbook.

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 Accordingly, after reviewing the whole record, we conclude that petitioner’s
determination that respondent was negligent and failed to exercise due care was supported by
competent, material, and substantial evidence. To the extent that alternative findings could have
been supported by the evidence, there was sufficient evidence in support of petitioner’s findings
and conclusions. See Risch, 274 Mich App at 372. Further, whether respondent violated the
standard of care is a matter within petitioner’s expertise, to which we defer. Anderson, 299 Mich
App at 598.

Respondent faults petitioner for not according proper deference to the administrative law
judge’s unique opportunity to hear all of the testimony and view all of the witnesses firsthand.
To support his position, respondent relied on language from our Supreme Court’s decision in
Mich Employment Relations Comm v Detroit Symphony Orchestra, Inc, 393 Mich 116, 126-127;
223 NW2d 283 (1974), which requires a reviewing court to consider a hearing examiner’s
credibility determinations as part of the record.

However, MCL 333.16226(2) explicitly grants petitioner broad power to sanction or take
disciplinary action, and MCL 333.16237(4) vests “the disciplinary subcommittee with the
discretion to determine whether the preponderance of the evidence supports or does not support
the findings of fact and conclusions of law of the hearing officer.” Anderson, 299 Mich App at
599. Further, when rejecting an appellant-optometrist’s argument that the subcommittee’s
rejection of the hearing referee’s conclusion that the appellant’s actions warranted no
disciplinary sanctions exceeded its permissible standard of review, the Court in Consumer &
Indus Servs v Greenberg, 231 Mich App 466, 469-470; 586 NW2d 560 (1998), held the
following:

No section of the Public Health Code conditions the subcommittee’s power to
sanction on a prior concurring conclusion by the hearing referee. . . . MCL
333.16237(3) . . . grants the subcommittee discretion to review and revise
proposals for decision. In light of these provisions, we conclude that the
subcommittee did not violate any provision of the Public Health Code by rejecting
the hearing referee’s findings of fact and concluding, contrary to the referee, that
appellant’s actions warranted sanctions.

Because petitioner was not bound by the recommended findings of the administrative law
judge, we find no merit in respondent’s argument that petitioner erred by rejecting some of the
administrative law judge’s credibility determinations.

Finally, respondent argues that petitioner’s implied conclusion that respondent was
competent is inconsistent with petitioner’s conclusion that respondent “violated a general duty
consisting of negligence.” We disagree.

MCL 333.16221 provides the following:

The disciplinary subcommittee shall proceed under section 16226 if it
finds that 1 or more of the following grounds exist:

(a) . . . a violation of general duty, consisting of negligence or failure to
exercise due care, including negligent delegation to or supervision of employees
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 or other individuals, whether or not injury results, or any conduct, practice, or
condition that impairs, or may impair, the ability to safely and skillfully engage in
the practice of the health profession.

(b) Personal disqualifications, consisting of 1 or more of the following:

(i) Incompetence.

“Incompetence” means “a departure from, or failure to conform to, minimal standards of
acceptable and prevailing practice for a health profession, whether or not actual injury to an
individual occurs.” MCL 333.16106(1). In contrast, “[n]egligence is a well-recognized legal
concept which describes conduct that falls below a standard of reasonable or due care.” Sillvery,
145 Mich App at 686. “A failure to exercise due care contemplates an abdication of
responsibilities or carelessness in executing one’s duties.” Id. Thus, negligence and
incompetence are distinct bases for disciplinary action under MCL 333.16221, and we cannot
conclude that petitioner’s findings were inconsistent.

In sum, petitioner made credibility determinations and utilized its expertise in making
findings of fact and conclusions of law. “[R]esolving conflicts in the evidence by making
credibility determinations is not a basis for reversal of an administrative action.” Anderson, 299
Mich App at 599. Because petitioner’s findings of fact are supported by competent, material and
substantial evidence on the whole record and petitioner’s decision was not arbitrary and
capricious, this Court must affirm petitioner’s final order. See Vanzandt, 266 Mich App at 583.

Affirmed.

/s/ Anica Letica
/s/ Michael F. Gadola
/s/ Thomas C. Cameron

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