This is our second article on Your Pet and the Administrative State. If you haven't read it, you may want to go back and read The Fourth Branch of Government, our introduction to the administrative state. When you're done, continue to our next article, A Cozy Cadre of Unbiased Professionals and meet some veterinary board members past and present.
Since we’re talking about the administrative state in the context of the veterinary board, it’s time to get into the details of exactly why all this fails so badly with respect to your pets. Certain professions are considered so important that they can only be practiced with the blessing of the government via some kind of license. These include medical doctors, veterinarians, barbers, and cosmetologists; in Louisiana floral arrangers are so afflicted. Such systems have often been attacked as illegitimate, if not unconstitutional, for unduly controlling someone’s right to hold an occupation and make a living. Rarely, if ever, have they been discussed in the context of creating a separate and unequal system of law preventing members of certain professions from being held accountable to the public.
Regulating these professions was almost tailor-made for the administrative state and its unique ability to set up special systems to deal with problems too important to be left to the normal apparatus of government. These agencies not only oversee the licensure requirements for practitioners and their facilities, but they also control the complaint process and disciplinary process for licensees. This leads to a peculiar situation where the government collectively believes twelve random jurors are qualified to vote to take another citizen’s life in a capital case yet doesn’t trust them enough to take away someone’s license to practice veterinary medicine or hairstyling.
The inequality is compounded by the fact that when one of you has a run-in with the law or gets taken to court, that’s in the public record more or less forever, even if you were wrongfully accused and later exonerated. Occupational licensing boards and their government allies, on the other hand, try to make sure most information about complaints and their disposition gets disappeared as quickly as possible, even when someone’s occasionally found guilty of some misdeed. Even in places like Arizona that have strong public records laws, legislators continue to erode the public’s ability to use them in situations involving occupational licensing, ostensibly with the objective of one day doing away with them entirely.
Occupational licensing boards are also particularly broken in that they are required by law to consist predominantly of members from the occupation being regulated by the board. This means that the occupational licensing boards of the administrative state fall victim to one of its worst excesses, regulatory capture, by statute alone. While there is still the opportunity for political mischief in terms of the lean of particular appointees and their interests, the fact of the matter is that the people being regulated are now in control of the only legal apparatus capable of holding them accountable. The standards that will be issued and enforced will, at best, be the lowest common denominator that certain members of that profession are willing to accept, society’s standards and values be damned. The consent of the governed is no longer required and the people making the big decisions are largely decoupled from the rest of the government.
The Arizona State Veterinary Medical Examining Board very much fits the description. Currently consisting of nine political appointees nominated by the governor and confirmed by the state senate, only three are public members. Of those, one is required by law to represent the livestock industry, leaving only two people with any possibility of acting in society’s interests. Of the remaining members, five must be veterinarians and one is required to be a certified veterinary technician.
The veterinary technician position was actually carved out from the contingent of public members in 2011 in SB 1269 introduced by then-Senator John Nelson (link); this was completely counter to the results of a 1997 government audit of the veterinary board that recommended increasing public representation. The same bill also reduced the number of public members on the veterinary board’s Investigative Committees, moving from three public members and two veterinarians to two public members and three veterinarians.
Nelson wasn’t alone in abandoning your pets to the government’s veterinary funhouse. The typical public hearing for a veterinary board member before the relevant Senate committee is usually only a few minutes, if that, and generally nothing more than a rubber stamp. To the extent they have shown an interest, they’re generally playing for the bad side. In a memorable 2014 exchange during Darren Wright’s nomination hearing in the Arizona Senate, Senator Farnsworth noted their shared interest in quality and efficiency, going on to note that the veterinary board cost $1.12 per minute to operate and urged Wright to spend the money carefully. Farnsworth then went on to say that while it’s important to protect our pets, he had concerns that the Board would take away someone’s freedom to practice their occupation just because they make mistakes; Wright reassured him that he believed in taking away licenses only for “egregious” mistakes and went on to suggest mistakes are a learning experience.
Similarly, the Senate committee responsible for J. Greg Byrne’s 2016 nomination seemed taken aback that Senator Miranda wanted to ask the nominee some questions before voting on him, while Jane Soloman’s 2019 hearing ended with a Senator heaping praise on the nominee’s life story. On the flip side, when Senator Kavanagh introduced a very minimalist malpractice bill in SB 1383, he was effectively kneecapped by some prominent veterinarians, Arizona veterinarians' favorite defense lawyer, and a majority of the Committee responsible for advancing the legislation (link).
More ominously, having decided that they don’t really have an interest in the Board’s actions, sometimes your government goes on to decide that you shouldn’t have an interest in it either. In 2010 a bipartisan group of Arizona legislators collaborated on HB 2545 (link), which would have removed all dismissed complaints from the public record. This would not only have protected all but the few professionals actually found guilty of anything by the Board, it would also protect most of the Board’s complaint process from the troublesome eyes of the public. In the end, they settled for leaving the complaints in the public record but preventing both dismissed complaints and nondisciplinary orders from being published on any government website.
And Arizona politicians haven't given up on trying to cover for their friends while simultaneously sweeping this self-inflicted medicolegal disaster under the rug. A 2017 bill introduced by Nancy Barto, SB 1452, started out by doubling down on keeping most nondisciplinary orders and advisories off of government websites (link). A 2021 bill, SB 1357, by the same Nancy Barto limited the posting of disciplinary orders to five years, sneaking it in as part of legislation regarding the state pharmacy board but applying to all health boards (link).
This level of regulatory capture and deference to a particular profession is particularly troubling given that there are no other legal means capable of halting a bad veterinarian. While animal cruelty laws do apply to veterinarians in some jurisdictions, including Arizona, they’re rarely if ever enforced. Our limited review of veterinary complaints includes many cases that would likely be considered cruelty by the general public but do not appear to have led to much of anything. Among other examples, a dog was strangled by his own veterinarian (20-15), a cat died after an egregiously-botched surgery involving feces leaking into the abdomen (21-11), a horse was allegedly smothered before being shot in the head during a failed euthanasia (18-94), and a dog died in his own living room during a woefully ill-equipped neuter procedure (18-06). In a rare case (21-88), a retired detective and his wife convinced the Maricopa County Sheriff’s Office to investigate and charge a veterinarian for neglect only to have the Maricopa County Attorney’s Office decide not to prosecute under curious circumstances; the veterinary board voted to dismiss the related complaint and the veterinarian indicated she would actually file a complaint against the charging officer for cronyism.
Nor can bad veterinarians be reasonably controlled through the introduction of veterinary malpractice laws. The most recent attempt to introduce such a bill in Arizona, Kavanagh’s SB 1383, failed to advance from committee. A bunch of current and former Arizona Veterinary Medical Association top bananas showed up along with Arizona veterinarians' preferred lawyer to provide cover for the state legislators who smothered it in the crib. Even if enacted, the bill would not have provided any legal means of preventing a bad veterinarian from continuing to practice, instead adding a relatively weak provision allowing individuals to sue a veterinarian in civil court for a relatively minimal payout (link).
While at least useful for establishing some semblance of legal accountability, the financial penalties permitted by malpractice laws would sadly be too minimal to truly dissuade a bad veterinarian from practicing. The market value of a pet, particularly a sick one, is essentially nil, and even when medical costs are included, it would likely make more financial sense to continue with business as usual and let the AVMA’s liability insurance pay out for the occasional successful lawsuit. Consider that for $1 million in coverage per occurrence and $3 million in aggregate for the 2023 plan year, the AVMA's liability insurance program would apparently charge a small-animal veterinarian a mere $259; for an equine veterinarian, where the horses actually do have some market value, the premium is still only $2,635 (link).
Nor are you likely to be able to obtain other damages sufficient to deter poor practice; in Kaufman v. Langhofer (2009) the Arizona Court of Appeals held that the special damages being sought were actually stronger than available in medical malpractice cases. And that’s assuming veterinary malpractice cases could be won in court at all given that few veterinarians are likely to testify against another. In one complaint (20-64) a veterinarian was actually investigated by the board over the mere allegation he suggested another veterinarian was incompetent. In another (20-67), a case brought by two potentially well-connected plaintiffs had their case thrown out by a judge largely on the basis that their out-of-state veterinary expert witness had not read the Veterinary Practice Act. And while you're trying to find a veterinarian willing to take your pet's side, the American Veterinary Medical Association's liability insurance team will be moving into high gear working "with the PLIT Trust Representatives and Trustees to identify expert veterinarian witnesses for PLIT claims" and define the standard of care (link).
As a result, the public is impotent with respect to obtaining justice from any of these professionals regarding matters within their own domain. While concerning at face value, it’s even more concerning in situations such as veterinary medicine. Veterinarians, after all, are one of the only professions in which killing is a primary job responsibility and the only health profession trained to routinely kill its own patients as a primary mode of treatment; occasionally they even run to the law to force their patients to make a final exit. In addition, veterinary organizations offer up a drumbeat of self-pity and grievance regarding serious mental illness, depression, and high rates of suicide within their own profession, yet never care to discuss the potential impact on quality of patient care or their own values regarding life and death. At least one JAMA study, Association Between Physician Depressive Symptoms and Medical Errors (link), found correlations between depressive symptoms and medical errors; that was among real doctors and not veterinarians brandishing a bottle of Euthasol to solve their toughest cases.
We're also told of a flood of public antipathy and hostility toward veterinarians, yet rarely do we ponder if this alleged level of public contempt may be the result of a deeper disconnect between their profession and the society in which it operates. Consider the several hundred complaints we've been able to obtain through public records requests, then consider that those are only the problems reported to a relatively anonymous state agency in just one state out of fifty. Then consider what you'll find when you read those records, including but not limited to: patients waking up mid-castration, burns and broken jaws in routine dentals, fatally misplaced feeding tubes, disconnected anesthesia machines, unavailable equipment, botched surgeries, spontaneously-disassembling living beings, beloved pets being shopped around to a bevy of specialists having no greater accuracy or efficacy than a tribal shaman sporting prominent nose jewelry—the Carnival of the Animal Doctors.
And how much cruelty and butchery do we not know, and what is yet to come? An effective means of investigation and adjudication is desperately needed, but justice for the rest of us will never be possible so long as occupational licensing systems are responsible for investigations and disciplinary actions. If things ever change, many of your current elected officials will likely fight such a change with all their might. They like their system, and they like that you’re not part of it.
Continue to our next article, A Cozy Cadre of Unbiased Professionals, and meet some veterinary board members past and present.