-: SJC-13653, Margo Roman vs. Board of Registration
and Veterinary Medicine.
-: Okay, Attorney Coakley.
-: Good morning, Chief Justice Budd,
associate justices of the Court.
May it please the Court, my name is Martha Coakley.
With me is Kevin Chen
and we represent Dr. Margo Roman,
a doctor of veterinary medicine in Hopkinton.
We're here today because of a finding in error
by the Disciplinary Board in Veterinary Medicine
and the single justice that Dr. Roman
was practicing beyond the scope of her license.
We ask this Court to find for Dr. Roman on this appeal
and restore her license, nunc pro tunc.
I'd like to focus on three issues today.
One, that Dr. Roman was not practicing veterinary
or any medicine
in sending her single email of March 16th, 2020.
Second, this Court decides, not the board,
on the statutory construction of Mass General Law's
chapter 112, both section 58,
which pertains to veterinary practice,
as well as section 61, paragraph one,
that deals with the ways in which
professionals can be disciplined.
That applies to all disciplines like doctors, optometrists,
chiropractors, et cetera.
Justice Kafker: I'm confused in your first argument.
Justice: Can we get the third point?
Justice Kafker: Okay, go ahead.
-: So, the third, quickly, is that we argue
that given the board's decision itself,
the length of time with two magistrates hearing
the argument before the single justice,
and now where we are today,
and the length and type of discipline imposed here,
two-year suspension of this senior, well-respected doctor's
veterinary license,
stripping her of her livelihood, her clients,
and her ability to practice,
that the board has demonstrated,
whether they intended to or not,
their real intent to silence her
for the content of a statement that she made
within that email, portion of a single email that she sent.
Justice Georges: Thank you.
I'm sorry, Jessica.
-: So, the first one, she sends out an email
to all her clients.
I'm just not sure I understand
why that can't be practicing medicine.
If she included in this email something outrageous,
you should leave your dogs out in the cold all night long,
it's good for them, even though it's, isn't that covered?
I'm just confused why a general directive
to all your clients isn't practicing veterinary medicine.
-: So it's a fair question, Your Honor,
and one that I think everybody would struggle with
until you immerse yourself into the statutes,
as we did during this case,
to take a look at what that statute section 58
defines as practicing.
And this is important in the context of your question,
which I'll get to in one second,
but also in the context of the punishment imposed here
under section 61, paragraph one.
So practice, as described in section 58,
is a series of things you do.
It is diagnosing, making a prognosis, treating,
administering, prescribing, operating on, et cetera,
any animal or someone who cuts a tissue.
-: Directly or indirectly?
And also treatment?
I'm just, it's pretty broad.
-: And the directly and indirectly
also comes into our argument, Your Honor,
if I can digress from one minute,
because the government argues that indirectly
refers to almost anything.
That's a limitless standard on what practicing would be.
In other words, the context of this,
and if you look at the regulations
under regulations for doctors, for instance,
and there's very little case law
because I think it may be common sense construction
that the directly or indirectly
refers to doing or allowing, supervising,
overseeing any of those actions that follow.
Otherwise anything a doctor or a chiropractor
or a veterinarian sending out or standing up
and saying, "I am a licensed vet,"
could be deemed to be practicing.
But that's not the end of the argument.
And I think to your question, Your Honor,
the email itself is labeled a directive to prevent,
to look forward, the title of the email specifically says,
"This is what we are going to do at our shop
"knowing we are coming into a pandemic
"that we don't know anything about yet."
We know a lot more now.
And it, that email could have been sent by anybody.
It could have been sent by a legal secretary.
It could have been sent by someone in her staff.
It is not practicing because it is not one of the actions
this section 58 prescribes.
And they are specifically prescribed as things you do
also in the context of a specific patient relationship.
And I think all of those things are important to understand
that that's not practicing
by sending out general health advice, even under her title,
and that it's not practicing
beyond the scope of her license
and those are two different things.
If she is found to be practicing
beyond the scope of her license,
which is the single factor the board ended up determining,
and that's where you look at section 61, paragraph one,
it says, basically, "That the board has relied on
"the language that says if you are engaged in conduct,
"which places into question the holder's competence
"to practice the professions."
So there are instances
where the board can find gross misconduct,
fraudulent behavior, gross incompetence, negligence.
The fifth item listed in that statute, however,
is beyond the authorized scope of your license.
That's what they're hanging their hat on
on this decision that what she did,
which we would argue is not practicing at all,
because it doesn't come under that definition
in the context of a relationship.
Justice Gaziano: What's the scope
of general health advice that's permissible?
-: What is the general scope?
-: As you see it?
-: So for a veterinarian, particularly, they take an oath
and they are obligated by that oath to educate themselves
and others in the interest of public safety.
And particularly for veterinarians,
but this practice is so unique, of course,
because people live and work with animals, they intersect.
-: So if a veterinarian said reasonably,
"Hey, all my, you know, patients and customers or patrons,
"I think it's really important
"that we all eat healthy in today's times,
"that we shop on the perimeter of the supermarket
"and walk as as often as we can
"and practice good health advice."
Is that something a veterinarian could do?
-: I think that's right, Your Honor.
I think they could, and in fact, they were encouraged,
veterinarians were encouraging,
were encouraged by the government to encourage others
to get vaccines
because they are at the intersection of health
and animal personal health.
Obviously, that intersects, as we know,
witness the Court can take notice of the bird flu concern
that we have, or with pandemic, obviously.
And that's particularly important in this case
because educating herself and the public
around these intersections
and giving general health advice is all she did
in that email.
-: Were she to say something that the government approved of
and the email said, "There's going to be
"vaccinations coming out,
"I encourage all my patients to be vaccinated."
That would be permissible?
-: I believe it would under current status of
where we are medically and what the government has said.
And even more importantly, Your Honor,
and it goes to this question,
we believe there's a bit of a pretext going on here
because the board did not like the ozone therapy.
-: Okay, that's the point I made.
Had she given government-approved advice
as opposed to this ozone therapy,
we'd be in a different posture.
-: Well, correct.
And if she had given advice like,
leave your dogs out all night,
or we think heroin is a good solution for the pandemic,
she could be found by the board
under many of these conditions
to be demonstrating competence
that shows she shouldn't have a license.
But that's not what they said.
They went down that road, in fact,
in front of a single justice.
-: So your view, it's the message,
not the messenger that's the issue here?
Martha: I'm sorry, Your Honor.
-: It's the message, not the messenger
that was the issue here.
-: I think it's a little bit of both, exactly.
And they are saying that you as a doctor
and the single justice kind of found that
because she was holding herself out,
she could be practicing.
And if she had said something that indicated negligence
or incompetence to practice, that would've been fine.
And the cases that we've looked at,
and there aren't many, you know,
the board has great discretion, as it should,
to protect the public.
Very few cases get decided or come before you on this.
But this one is different, I think,
because the message involved,
and we didn't argue First Amendment,
obviously, in our brief,
but it does impact now if this Court finds,
which I believe it can, that there was no practicing,
there was no practicing.
-: But she's prescribing, I don't know what this is,
the ozone, how does it work?
Is it an apparatus?
I don't know what it is.
-: It's an apparatus, but there's no prescription involved.
She recommends and she says in the email,
"This is good for people and animals."
-: I understand.
But so again, that gets back to is she directly
or indirectly prescribing something,
which she seems to be doing, for both animals and people?
Right?
She's prescribing this ozone.
Isn't she telling them?
-: She's recommending, generally, something,
but there's no prescription to a particular person
to take this.
-: Well, but she's telling all her clients to do this.
And furthermore, she's saying, and this is she's saying,
"Tell them I told you to do this."
Is that so that she has some kind of financial
or relationship? Martha: No.
No, I mean, so she's, why is she telling them,
"Tell them I sent you."
-: She says specifically in the email, Your Honor,
that "If you are interested in this,
"tell them that we sent you because they know that we,
"Dr. Roman at MASH, are interested in knowledge about this
"and they will help educate you on how to use it."
Those are all for sale, by the way,
you can get them on Amazon.
Justice Kafker: That's not practicing
veterinary medicine?
-: It, I would argue it isn't, Your Honor,
and I do think you have to go in to look at those statutes.
The case law, every single case that deals with discipline
of someone under these circumstances is in the context
of a patient-client relationship, not general advice.
-: Okay, so if we, if we disagree with you on that though,
that prescribing this, we consider this practicing medicine
in some respect, do you lose?
-: No, because I think, and I'd like to argue today,
I realize my time is running short already.
That even if you were to find a practicing,
which I think when you look at the statutes, you will not,
you can find that this portion of one email
sent, in general, to people on the eve of pandemic
is not indication
that she is practicing incompetently beyond her license.
That's what the Court, that's what the board below
failed to do by any kind of evidence
to show that this one thing says
we need to shut this doctor down for two years.
We're gonna strip her and her patients, her clients
of her services for two years.
It's excessive, it's punitive.
Justice Georges: Even with the findings
that they made about the toxicity of this therapy?
-: Well, fair enough, Your Honor.
Before the single justice, they argued, the government,
that this is toxic
and we have all these announcements that it's toxic.
But interestingly, what they included in the record
was published after she sent that email, not before.
And they have backed off that argument.
The government now says, we are not arguing
about the merits of the ozone therapy.
In fact, if you look at the CMR,
the regulations for veterinarians,
they talk about what are some of the alternative
holistic ways that this is proceeding?
And they have both, they mention ozone therapy in the CMR,
Massachusetts CMR, and they have standards that says,
"The one thing we think you need to do
"if you're going to use this,
"is make sure the client you're talking with
"about these therapies understands that they may not
"be considered conventional medication,
"but they are on the cutting edge."
That's exactly what the amicus brief talks about
filed with this Court.
That this is cutting-edge research.
It's important, it's regulated.
And the board backed off saying,
"We think ozone therapy is dangerous."
We're not talking about that.
We just think she practiced beyond.
So I think there's several reasons
that this Court can find in this limited case,
the board overstepped its bound,
however well-intentioned it was,
and sanctioned and punished this doctor
in a way that was excessive, out of line,
not that there are a lot of cases on it,
but often people get 18-month suspension.
They, that stayed, which it wasn't in this case,
she has not been practicing for this period of time.
It's a huge hardship.
This decision was wrong.
This Court can remedy that.
And I would ask that the Court find for Dr. Roman
and restore her license nunc pro tunc.
-: [Chief Justice Budd] Okay, thank you.
-: Thank you.
-: Attorney Gokey.
-: Good morning, Your Honors.
May it please the Court,
Grace Gokey, Assistant Attorney General,
appearing on behalf of the Board of Registration.
We're asking this Court to affirm the single justice
and dismiss the petition.
The board here acted within its statutory authority
and its substantial discretion in sanctioning Dr. Roman
for practicing her profession
beyond the scope of her license.
The March 16th, 2020 email was a targeted communication,
sent from the clinic's email to her client list
to facilitate her treatment and care of her animal patients.
And Dr. Roman held herself out in that communication
as someone who, and she was indeed at the time,
qualified to practice veterinary medicine.
However, while practicing within that scope,
or it started out practicing within the scope,
but then the suggestions that she made
in the second portion of the email
went beyond the scope of her license by advising humans
on how to protect their own health.
-: Okay, but that's where I wanna try to figure out.
So obviously we're in the pandemic,
the humans are taking care of the dogs,
the humans are also somewhat interacting
with the veterinarians.
So she's gotta be able to say certain things, right?
I don't know if she's gone too far here,
but can't she say, you know,
"Take really good care of yourself,
"abide by the governor's restrictions
"and stay away from people."
Can't she do that?
I mean, if she wrote something that just tracked
what the governor was telling people to do,
wouldn't that be okay?
-: Your Honor, I agree.
As a starting premise, there are things she can say,
including the things she says
in the first portion of the email.
-: I'm focusing on what she says about humans.
And doesn't she have some ability,
because the humans, we also, at this point, I don't know,
do we know that COVID in,
there's no human-animal transmission issues, even,
it's early in the game, we're all frightened.
I'm just trying to understand what she,
she's gotta be able to say some things.
Now, she may have gone too far
and prescribe ozone treatment, you know,
and tell people she wants them to contact their people
and tell 'em.
But that may be different.
But I, she's gotta be able to give some advice
about taking care of yourself
because there's some interrelationship
between your own health and your dog's health.
-: And Your Honor, I think she can speak to issues
that are related to her practice.
So things that, for example,
she has pointed in the briefing to the fact
that the hearing officer excluded a portion of the email
from the practicing outside the scope
about ozone as a disinfectant
because of pet hair being a surface on which
the COVID vaccine, or excuse me, the COVID virus could live.
So the board was very careful in distinguishing
which parts of this email are related.
-: But my understanding, again, I may be oversimplifying it,
they're saying she,
everything she said about the animals is fine.
Everything she said about the people is no good
'cause she can't give any medical advice to people.
-: So I wouldn't say it's anything she says about people,
it's things she's saying about humans
that are also unrelated to her, the scope of her license.
So if, for example, she said something,
and it wouldn't make sense at this point in time.
Justice Kafker: Take good care of yourself.
-: I think take good care of yourself would be so generic
that there would be no problem.
-: Okay, so how about abide by the governor's restrictions
on staying away from other people.
Your health is important to your dog's health.
I just, I worry that.
-: I think if there were that link,
if it was taking care of yourself is important
to your dog's health and here's.
Justice Kafker: Well, she does say,
she says a little of that, doesn't she?
-: Well the, what she says is that ozone is effective
for both humans and animals.
So that's as two separate, it will help your animals.
That's, I think, within the scope of her license.
Also, it will help humans.
That is outside the scope of her license.
It's not about the link between the two.
-: So that's where she goes wrong when she gives any kind of,
I'm just trying to get us, because the next case,
you know, I just wanna make sure I understand
what the holding of the board is,
which is where did she go too far?
If it's limited to prescribing this novel treatment
to humans when she has some kind of championing of it
out there in public, I understand that may be one rule,
but if it's no vet can give advice to their clients
about preserving their health,
then I'm nervous that you've gone too far.
-: Well, Your Honor, I think there's a number of guardrails
on this, which is,
one, she has to be practicing in that moment.
So a conversation that she's just having with someone
where she's not in that moment practicing her profession,
that wouldn't be covered by this.
-: Well, her website says, you know,
"I'm a believer in this one philosophy.
"Your health and your dog's health are interrelated.
"Take good care of yourself.
"Here are some good techniques.
"Eat lots of vegetables."
And she's gonna be disbarred or whatever the equivalent is
as a veterinarian?
-: Well, Your Honor, the board did distinguish
this communication from something like a general website.
That's in their response to, I believe, objection four,
within their final decision.
So what they were especially concerned with here
is that this is a targeted communication
that people are receiving because they are her clients.
They don't just happen to be her clients.
They're receiving it in their capacity
as her veterinary clients.
-: If you look at her website, you're doing it
because you're interested in having them be your vet, right?
-: Well, I think the concern here is that these are people
who have acquired her services for a specific purpose,
which is to be a veterinarian.
And that they trust her for that purpose.
And they don't necessarily know
exactly what the limits of license are.
It's the board, it's the professionals that monitor
the differentiation between various licensed professionals.
-: But they don't, I mean, like, I take my dog in
'cause the dog's paw hurts.
I don't ask the vet to fix my hand because I've got,
you know, stiff knuckles, right?
I mean.
-: Right, Your Honor.
And I think for the same reason
that on the other side of that equation,
the veterinarian has an obligation to also limit themselves
to what is within the scope of their license.
-: So if parts of her email were permissible
and there was a smaller part that was impermissible
that strayed and it's in the middle,
it's in the beginning of the pandemic
when everybody doesn't know what's going on
and people are panicking.
So the intent is something we can think about.
How does that get your harsh two-year termination?
-: Well, Your Honor, the sanction,
which there's particular deference given
to the board's assessment,
and it was looking also at aggravating circumstances
involved in the prior disciplinary matters.
So there had been really five prior disciplinary matters
leading that were progressive.
So it went from a $100 fine to, ultimately,
I believe a $1000 fine and probation.
And so it is perfectly appropriate for the board to tailor
the newest sanction in light of that.
There's in.
-: [Chief Justice Budd] What were the other sanctions for?
Were they similar to this type of thing?
-: No, Your Honor, they were separate.
There was some about medication,
securing medication properly.
There was some about administering care
under the standards of care.
But the board's regulations don't,
it's provisions that provide for progressive discipline
don't say it has to be, you know,
it's only under the same subsection.
-: No, I mean I understand that it doesn't have to be,
but when you look at the totality of the circumstances,
I would think that.
-: Did they find, did they take into consideration
mitigation in this case?
-: They did, Your Honor.
If you look at the board's decision at the very end,
so there's the part of the board's decision
that's responses to objections.
And then after that you'll see
both mitigating and aggravating circumstances.
They acknowledged that there was no evidence
of bad intent here.
They acknowledged that there was no evidence
that someone had followed this advice.
So there was recognition of those mitigating circumstances
in addition to the aggravating ones.
-: Did they take into account the state of knowledge
about the pandemic at this point?
-: I don't believe they made an explicit finding about that.
I would say that the state of knowledge
sort of cuts both ways here.
I think that that makes it even more important
in times of uncertainty that professionals do remain
squarely within the scope of their own licenses
and don't start, you know, giving advice that would,
could relate to another licensed professional.
-: The thing that's striking to me,
it seems that this is content-based in that had she said,
"Wear a mask and socially distance,"
the government would be A-okay with that.
Because she said this alternative type of treatment,
then she's in violation.
-: Your Honor, I disagree.
I don't think that the board relied on the specific content.
They were very clear repeatedly in saying
this is not about whether ozone is or is not a good
and effective therapy.
Where I think it.
-: Isn't that a problem though,
'cause I have the same concern Justice Gaziano has,
but maybe from a different angle,
which is don't you need this treatment to be out of bounds
for this to be a disciplinary offense?
And if it's just generic, wear a mask,
it, she shouldn't be disciplined at all.
Grace: Well, Your Honor.
-: Don't we really have to find
that this is kind of a kooky treatment or a,
for us to justify this?
-: So I think that there are several different
decision points here
and what we're talking about is the liability.
That's what's being challenged
is did she violate the statute
by practicing outside the scope of her license?
That liability finding is not dependent on the content.
Where I think you could see the discretion of the board
is both in the prosecutorial discretion of, you know,
is this a case that they're going to pursue?
Is this a case that even received a complaint about?
In this case they did receive a complaint.
In something perhaps totally and utterly innocuous,
no one would bring that to the board's attention.
And then on the other side is the sanction.
So the board can consider, you know,
based on the particular circumstances,
what sanction is appropriate?
And that's a strongly discretionary decision
where the board weighs those mitigating
and aggravating circumstances.
So there are, although the liability finding
does not depend on what the out-of-scope communication
or the out-of-scope conduct was.
Justice Georges: But.
Justice Kafker: I'm sorry, go ahead.
-: I'm still struggling with this
because part of what we have to do with these decisions
is to give some clarity to folks out there
about what you can and can't do.
And, you know, Justice Gaziano started this
with the content-base component to this.
If you're saying that it hadn't anything to do
with the content and that she just can't give
or any vet can't give human advice independently,
what are we telling the vets to say
that if somebody happens to have some interconnection
between what's good for their animal
and what's good for the humans,
there's supposed to be all of these disclaimers
that whatever I'm telling you
is only for purposes of your animal
and I can't mention whether eating healthy, or taking walks,
or wearing masks, or socially distancing,
I can't speak to any of that
because that would subject you to the board contending
you're practicing outside of your license.
What message is that going to,
how are we going to educate the folks out there
about what they can and can't do?
-: Well, Your Honor, there does have to be a line here
in what is within the scope of veterinary practice
as opposed to any other licensed professional.
And so I do think the board is the body best placed
to decide where those lines are.
They are themselves comprised of four veterinarians
as well as one member of the public.
This is, you know, they are experts on where is that line
in the, in conduct or in communications
that are at that intersection of animal and human health
and do fall within the scope
and then the communications and conduct
that are outside the scope.
-: Can I ask a follow up on what,
Attorney Coakley says the,
I'm bothered by the,
"Buy the ozone and tell them I sent you."
Should that be not a consideration for this Court?
'Cause if you agree it shouldn't be,
I'm not gonna worry about it.
Or is that problematic
because there may be some kind of prescribing of something
to humans in which this person
has some kind of proprietary or other interest in it.
-: So the board did discuss that referral link.
It's in their response to objection 13.
And the way that they considered it was that it
supported the conclusion that this was practicing
because it was a targeted communication
that was intending to direct specific advice
to her client base.
So that's where they incorporated that factual element.
So, I wouldn't say the content is irrelevant.
What I'm saying is just the.
-: Again, trying to define a rule that we can enforce,
is prescribing something to humans
in which you have some kind of particularized interest,
does that cross the line or is that
what makes this different from saying wearing a mask
like the governor said?
-: Your Honor, I don't think I would
define the role so narrowly.
It did also find that the other two paragraphs
about homeopathic medicines and.
-: But again, she's a champion of homeopathic medicine
in a and she's using that in her email to her clients.
Is that, again, some way that we can distinguish this from,
you know, take good care of yourself,
follow the governor's directions, you know?
-: Well, Your Honor, I think the issue is,
and this is in the board's response to objection 17,
the problem here is she failed to maintain the boundary
between her veterinary practice
and other knowledge she might have.
And it is very important to all boards of registration
for the public health
and for the integrity of the professions
that licensed professionals are diligent
about what are the boundaries of my license,
when am I acting in that capacity,
and how can I ensure, you know,
that I stay within in the bounds of that license?
So I do think the issue here
is that when acting in the capacity
as a licensed veterinarian,
there is an obligation to maintain that boundary
between that specialty, that licensed profession,
and then other areas of knowledge someone might have
and can share in other contexts, absolutely freely.
If the Court has no further questions,
we would ask you to affirm and thank you very much.