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Licensee’s continuing to practice after revocation is not defensible as ‘delegation’

A revoked veterinarian was barred from using a delegation defense against charges of unauthorized practice for continuing to practice veterinary surgery while contracting with another licensee as attending veterinarian, in a July 12 ruling by the Michigan Court of Appeals.

(People v. Langlois).

In November 2015, Bruce Philip Langlois’s license to practice veterinary surgery was revoked. That action was upheld in 2017 by the Michigan Court of Appeals. Nonetheless, Langlois continued to own a practice called “Spay and Neuter Express,” a mobile veterinary surgical clinic that employed Duane Fitzgerald as an independent contractor and attending veterinarian.

When charged by the state with unauthorized practice of veterinary surgery, Langlois claimed that he performed the surgery as delegated by Fitzgerald. However, Fitzgerald testified that in December 2016, he worked alongside Langlois within the mobile surgical unit, that he and Langlois both had their own separate patients, that he did not supervise Langlois, and that he was aware that Langlois’s license to practice had been revoked.

Langlois asserted that he was in fact supervised by Fitzgerald and argued an affirmative defense by delegation: i.e., because Fitzgerald oversaw Langlois, it was a legal surgery by Michigan state law. The prosecution filed a motion to preclude this defense as a matter of law. The trial court denied the motion on the grounds that there was not any law stating Langlois could not perform the surgery, and that the question should be presented to the jury.

The Court of Appeals considered the question de novo of whether a licensed veterinarian could delegate supervised surgical duties to an unlicensed veteri-nary surgeon, allowing Langlois to claim the affirmative defense of delegation.

However, state law also provides an exception to this rule, where a licensee may delegate a task to an unlicensed individual who is otherwise qualified by education, training, or experience, provided the act falls within the licensee’s scope of practice and is supervised by the licensee. Langlois based his defense upon this provision. As a trained surgeon, albeit unlicensed, he possessed the education and training to legally perform a surgery provided he was supervised by a licensed veterinary surgeon, he argued.

The Court of Appeals rejected Langlois’s argument on the basis of expert testimony and the legislative intent of the statutory exception.  McNally, a veterinarian and member of the state veterinary board, testified that “the ‘acceptable and prevailing practice’ for veterinary medicine does not allow for the delegation of surgery to an individual who is not licensed at the time.”

Moreover, the Court held that the legislative intent of the exception is to legalize the practice of veterinary technicians, who are explicitly barred by state law from using their training to perform surgery.

Thus, the Court of Appeals rejected Langlois’s assertion that he could legally be delegated to perform surgery via supervision by a licensed veterinary surgeon. The Court of Appeals further held that, as a matter of law, Langlois is precluded from presenting this defense to the jury; the court reversed the trial court’s denial and remanded the case for reconsideration in a manner consistent with this holding.