                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    July 12, 2018
               Plaintiff-Appellant,                                 9:05 a.m.

v                                                                   No. 340477
                                                                    Huron Circuit Court
BRUCE PHILLIP LANGLOIS,                                             LC No. 17-306159-FH

               Defendant-Appellee.


Before: BORRELLO, P.J., and M. J. KELLY and BOONSTRA, JJ.

BOONSTRA, J.

        In this interlocutory appeal, the prosecution appeals by delayed leave granted1 the trial
court’s order denying the prosecution’s motion in limine to preclude defendant from presenting a
delegation defense to the jury. We reverse and remand for further proceedings.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Because this appeal presents a question of law that hinges on statutory interpretation, we
will only briefly discuss the factual background of this case. It is undisputed that defendant is a
formerly licensed veterinarian whose license to practice veterinary medicine in Michigan was
revoked in November 2015.2 In 2016, the Michigan Bureau of Professional Licensing received
complaints that defendant had performed “spay and neuter” surgeries without a valid license. An
investigation revealed that defendant owned a business called “Spay and Neuter Express.” Dr.
Duane Fitzgerald, a licensed veterinarian, worked for Spay Neuter Express as an independent
contractor and was designated as its attending veterinarian. Dr. Fitzgerald described the business
as “an ambulatory service that serves remote areas or rural areas for spaying and neutering
people’s pets . . . set up in a mobile home that has been converted to a surgical facility.”


1
 People v Langlois, unpublished order of the Court of Appeals, issued March 15, 2018 (Docket
No. 340477).
2
  The revocation was upheld by this Court in 2017. See Dep’t of Licensing and Regulatory
Affairs v Langlois, unpublished per curiam opinion of the Court of Appeals, issued February 14,
2017 (Docket No. 330451).


                                                -1-
        Defendant was charged with three counts of the unauthorized practice of a health
profession, MCL 333.16294, related to performing veterinary surgery in December 2016 while
his license to practice veterinary medicine was revoked. During defendant’s preliminary
examination, Dr. Fitzgerald testified that on December 16, 2016, defendant performed many of
the surgeries that had been scheduled for that day, and that he and defendant performed their
respective surgeries in the same general area. Dr. Fitzgerald stated that he did not oversee
defendant, and agreed that he did nothing to ensure that defendant was performing the
procedures properly and did not check to see how many procedures defendant had completed.
He also believed the animals on which defendant operated were defendant’s patients, not his.
Dr. Fitzgerald was aware that defendant’s veterinary license had been suspended or revoked. He
characterized defendant as a competent surgeon who possessed the knowledge and skills to
perform veterinary surgery.

         After defendant was bound over to the circuit court, he moved to quash the information
on the ground that Dr. Fitzgerald, a licensed veterinarian, had properly delegated to defendant
the surgical tasks that he performed. In response, the prosecution asserted that a delegation
defense was unavailable as a matter of law, and also moved to preclude defendant from
presenting such a defense to the jury. After an evidentiary hearing, at which Dr. Fitzgerald
testified consistently with his preliminary examination testimony, the trial court denied the
prosecution’s motion, stating that there was not “anything within the statutes or rules that say,
‘You cannot perform a surgery’ ” and that it was “a question for the jury.”3

       This appeal followed. The trial court granted the prosecution’s motion for a stay of
proceedings pending the resolution of this appeal.

                                   II. STANDARD OF REVIEW

         We review for an abuse of discretion a trial court’s ruling on a motion in limine. Bartlett
v Sinai Hosp of Detroit, 149 Mich App 412, 418; 385 NW2d 901 (1986). However, we review
de novo as a question of law matters of statutory interpretation. People v Thomas, 263 Mich
App 70, 73; 687 NW2d 598 (2004). Further, where “delegation of authority . . . [is] a legal
nullity, the question of whether [the] defendant’s actions constitute illegal conduct is one of law
to be decided by the trial court.” People v Ham-Ying, 142 Mich App 831, 836; 371 NW2d 874
(1985). A trial court abuses its direction when it makes an error of law or operates within an
incorrect legal framework. People v Everett, 318 Mich App 511, 516; 899 NW2d 94 (2017).

                                          III. ANALYSIS

       The prosecution argues that the trial court erred by failing to hold as a matter of law that
defendant may not present the defense of delegation in this case. Based on the specific acts
alleged in this case, the undisputed expert testimony, and the language of the relevant statutes,
we agree.



3
    The trial court also denied defendant’s motion to quash on July 17, 2017.


                                                 -2-
         “The primary goal of statutory interpretation is to ascertain and give effect to the intent of
the Legislature.” Thomas, 263 Mich App at 73 (quotation marks and citations omitted). In order
to discern legislative intent, this Court first looks to the language of the statute. People v
Borchard-Ruhland, 460 Mich 278, 284; 597 NW2d 1 (1999). “When construing a statute, the
court must presume that every word has some meaning and should avoid any construction that
would render any part of the statute surplusage or nugatory,” and “[i]f possible, effect should be
given to each provision.” Id. at 285. “This Court must look to the purpose of the
statute . . . [and] the harm it is designed to remedy, and apply a reasonable construction that
accomplishes that statute’s purpose.” People v Stone Transp, Inc, 241 Mich App 49, 51; 613
NW2d 737 (2000).

        Veterinary medicine is an occupation that falls within the purview of the Public Health
Code, MCL 333.1101 et seq. A veterinarian is “an individual licensed . . . to engage in the
practice of veterinary medicine.” MCL 333.18805(3). Persons who are not licensed “or
otherwise authorized” are prohibited from practicing veterinary medicine. MCL 333.18811.
MCL 333.18805(2) provides:

               “Practice of veterinary medicine” means:

               (a) Prescribing or administering a drug, medicine, treatment, or method of
       procedure; performing an operation or manipulation; applying an apparatus or
       appliance; or giving an instruction or demonstration designed to alter an animal
       from its normal condition.

             (b) Curing, ameliorating, correcting, reducing, or modifying a disease,
       deformity, defect, wound, or injury in or to an animal.

              (c) Diagnosing or prognosing, or both, a disease, deformity, or defect in an
       animal by a test, procedure, manipulation, technique, autopsy, biopsy, or other
       examination.

Under the Public Health Code, the unauthorized practice of a health profession, including
veterinary medicine, is a felony:

       Except as provided in [MCL 333.16215], an individual who practices or holds
       himself or herself out as practicing a health profession regulated by this article
       without a license or registration or under a suspended, revoked, lapsed, void, or
       fraudulently obtained license or registration, or outside the provisions of a limited
       license or registration, or who uses as his or her own the license or registration of
       another person, is guilty of a felony. [MCL 333.16294.]

MCL 333.16215 provides certain exceptions to the statute criminalizing unlicensed practice, and
states in relevant part:

       (1) Subject to subsections (2) to (6), a licensee who holds a license other than a
       health profession subfield license may delegate to a licensed or unlicensed
       individual who is otherwise qualified by education, training, or experience the

                                                 -3-
         performance of selected acts, tasks, or functions where the acts, tasks, or functions
         fall within the scope of practice of the licensee’s profession and will be performed
         under the licensee’s supervision.[4] A licensee shall not delegate an act, task, or
         function under this section if the act, task, or function, under standards of
         acceptable and prevailing practice, requires the level of education, skill, and
         judgment required of the licensee under this article.

                                               * * *

                 (7) An individual who performs acts, tasks, or functions delegated
         pursuant to this section does not violate the part that regulates the scope of
         practice of that health profession. [MCL 333.16215(1), (7).]

        Defendant argued before the trial court, and argues on appeal, that there is no specific
statute or administrative rule prohibiting the delegation of veterinary tasks (including surgery) to
an individual whose license has been suspended, noting that the Board of Veterinary Medicine
has promulgated a rule regarding delegation that does not preclude the delegation of tasks to
unlicensed individuals. See Mich Admin Code, R 338.4911. Defendant’s argument ignores the
fact that MCL 333.16215(1) prohibits a licensee from delegating an act, task, or function that,
“under standards of acceptable and prevailing practice, requires the level of education, skill, and
judgment required of [a] licensee . . . .” MCL 333.16215(1).” At the motion hearing, unrebutted
expert testimony by Dr. Dwight McNally, a licensed veterinarian who sits on the State
Veterinary Board and was qualified as an expert in Veterinary Medicine, established 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, because defendant’s license
was revoked for providing substandard care to animals upon which he performed spay and neuter



4
    The Public Health Code defines “supervision” as
         the overseeing of or participation in the work of another individual by a health
         professional licensed under this article in circumstances where at least all of the
         following conditions exist:
                 (a) The continuous availability of direct communication in person or by
         radio, telephone, or telecommunication between the supervised individual and a
         licensed health professional.
                (b) The availability of a licensed health professional on a regularly
         scheduled basis to review the practice of the supervised individual, to provide
         consultation to the supervised individual, to review records, and to further educate
         the supervised individual in the performance of the individual’s functions.
                (c) The provision by the licensed supervising health professional of
         predetermined procedures and drug protocol. [MCL 333.16109(2).]




                                                 -4-
procedures,5 a determination has been made that defendant does not meet the requirements of a
licensee regarding “the level of education, skill, and judgment” required, not only to practice
veterinary medicine in general, but to perform the specific task that forms the basis of the
charges against him.

        Our conclusion is supported by the fact that veterinary technicians, who are defined as
persons who have obtained licensure as a veterinary technician, MCL 333.1811(2), and who
“practice veterinary medicine based on less comprehensive knowledge and skill than that
required of a veterinarian” under the supervision of a veterinarian, MCL 333.18805(1), are
explicitly prohibited from performing as a surgeon, MCL 333.18811(3). If a licensed veterinary
technician may not perform surgery under delegation, then it follows that an unlicensed person
acting as a veterinary technician may not either. While we recognize that practice as a veterinary
technician is a “subfield of veterinary medicine,” MCL 333.18808, this suggests a legislative
intent that the practice of veterinary surgery not be delegated to individuals who are not validly
licensed practitioners of veterinary medicine. Stone Transp, Inc, 241 Mich App at 51.

        This Court’s reasoning in Ham-Ying is both relevant to our conclusion and persuasive. In
Ham-Ying, 142 Mich App at 833, the question on appeal concerned “the extent to which a
licensed physician may delegate tasks to a physician whose license has been suspended.” In that
case, the defendant-physician’s license had been suspended, but he continued to refill
prescriptions for patients. Id. After being charged with the unauthorized practice of medicine,
MCL 333.16294, the “defendant argued that he had been delegated proper authority by a
licensed physician to dispense refill maintenance medication pursuant to MCL 333.16215.” Id.
at 834. The Ham-Ying Court held that delegation was improper, explaining that although the
defendant had the requisite education, training, and experience, the conduct that had led to the
suspension of his license demonstrated that he did not possess the requisite judgment of a
licensee and that the licensee’s duties could not be delegated to him as a matter of law. Id. at
836.

        We recognize that the Public Health Code is more explicit in stating that the prescribing
of controlled substances can only be done by a licensed physician, and that such substances may
only be dispensed by a licensed physician or pharmacist. See MCL 333.17751. But we
conclude that a reasonable construction of the relevant statutory language concerning the practice
of veterinary medicine compels the same conclusion. Stone Transp, Inc, 241 Mich App at 51.

       We also are not persuaded by defendant’s citation to Dep’t of Consumer & Indus Servs v
Hoffman, 230 Mich App 170; 583 NW2d 260 (1998). In Hoffman, this Court stated without
elaboration that a veterinarian could delegate the practice of chiropractic medicine on horses to a
licensed chiropractor who did not possess a license to practice veterinary medicine. Id. at 179.
However, the Court focused its analysis on whether the defendant in that case had in fact been
properly supervised. Id. at 179-180. In any event, the defendant in Hoffman was a properly
licensed chiropractor; in other words, the issue was whether a properly licensed health care


5
    Langlois, unpub op at 1.


                                                -5-
provider could practice his form of medical treatment on animals, and the Hoffman Court
concluded that one could, if one was qualified to do so by education, skill, and training and was
supervised by a licensed veterinarian. Id. at 180. That a validly licensed chiropractor may
possess “the level of education, skill, and judgment” necessary to perform chiropractic tasks
delegated by a veterinarian, MCL 333.16215(1), does not alter our conclusion that defendant did
not meet those criteria regarding veterinary surgery under the circumstances of this case. The
trial court abused its discretion by denying the prosecution’s motion in limine, because Dr.
Fitzgerald could not, as a matter of law, delegate the task of veterinary surgery to defendant.
Bartlett, 149 Mich App at 418; Everett, 318 Mich App at 516.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                           /s/ Mark T. Boonstra
                                                           /s/ Stephen L. Borrello
                                                           /s/ Michael J. Kelly




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