Appeals court asked to decide free speech element of veterinary case

Ban on online-only practice deemed by some to encroach upon First Amendment rights

March 21, 2014 (published)
By Jennifer Fiala

Texas officials have asked the U.S. Court of Appeals for the Fifth Circuit to determine whether a veterinarian’s right to free speech is a reasonable claim in his lawsuit against state regulators who forced him to stop evaluating animals and giving medical advice via the Internet.

How the appeals court answers the First Amendment question — if judges agree to hear it — is expected to significantly influence the outcome of Hines v. Texas State Board of Veterinary Medical Examiners, which has yet to be adjudicated by the U.S. District Court for the Southern District of Texas, where it was filed last April.

The state’s motion for interlocutory appeal, a civil procedure that asks an appeals court to rule on elements of a case still active at the trial court level, is welcomed by attorneys with the Institute for Justice, the civil liberties law firm representing Dr. Ronald Hines.

“This will narrow what needs to be decided in the trial court going forward,” explained Matthew Miller, co-counsel and executive director of the Institute for Justice’s Texas chapter. “The Fifth Circuit can conclusively establish whether this is a First Amendment case."

A ruling from the Fifth Circuit would likely set legal precedent regarding telemedicine and regulations restricting online speech over nine district courts in Louisiana, Texas and Mississippi.

If the decision is in Hines’ favor, it also could dramatically change what veterinary-client-patient relationships, or VCPRs, mean to the profession. Attorneys for the regulatory board filed with the Fifth Circuit after United States District Judge Hilda Tagle denied their motion to dismiss Hines' case.

"If the court ultimately finds that the regulations violate Dr. Hines’ First Amendment rights, the Texas licensing board may be required to substantially revise the definition of a VCPR to allow for veterinary advice provided by electronic means," wrote Adrian Hochstadt, director of the American Veterinary Medical Association's (AVMA) state legislative and regulatory initiatives, in a blog post about Judge Tagle's Feb. 11 ruling. "... For now, it’s only one decision by one district court, but if not reversed, will it embolden other veterinarians to offer similar services on the Internet?"

Hines had been consulting with pet owners via his website, mostly free of charge, for more than a decade when the Texas State Board of Veterinary Medical Examiners (TSBVME) suspended his license in March 2013 following a six-month investigation.

Regulators said his online practice ran afoul of the state’s veterinary licensing act, which requires veterinarians to establish a VCPR with patients before offering any type of medical advice or treatment. It’s the assertion of regulators in Texas that giving veterinary advice online is illegal when it concerns a specific animal.

A VCPR “may not be established solely by telephone or electronic means,” the licensing act states.

That stipulation also appears in regulatory language governing veterinary practice in other states, much of it mirroring a model practice act created by the AVMA.  

Officials with the Texas veterinary board declined to comment when asked what alerted them to Hines’ online practice in 2012. Nicole Oria, the board’s executive director, did not respond to email and phone inquiries. Kate Fite, the board’s general counsel said, “Texas officials want an appeals court to decide the matter.”

She followed with, “I can’t comment on ongoing litigation.”

While state regulators are mum, Hines is anything but. Reached at his home in Brownsville, Texas, the 71-year-old veterinarian said he spends his days gardening and beekeeping. A one-time owner of two veterinary clinics and world traveler, he explained that a spinal injury from his youth forced him to leave traditional practice in 2002.

That’s when he began, a website where he wrote articles and offered general veterinary advice. His guidance became more specified when people started contacting him about their pets’ ailments.

Hines, who’s spent much of his career practicing zoo animal medicine, said the cases were rarely typical. While he couldn’t help everyone, Hines said he could “at least hold their hands.”

“People talked to me, and I enjoyed that. I felt like I was doing some good, like I was accomplishing something,” he said. “They don’t write to me when they have a ear infection or broken toe nail. It’s always a mystery disease that comes and goes, a failing heart, a ton of medications. I find that intellectually challenging.

“I am not a materialistic person; I don’t need very much,” he added. “My online service netted me only about $1,800 a year.”

According to state board records, Hines license was clean prior to his suspension in 2013.

“I don’t quite see where the damage is. How is what I’m doing a crime?” Hines mused. “It’s not like I was doing surgery over the computer. I don’t see I’m a threat to anybody. And there’s such a need, especially for those who don’t have money.”

That’s one of the reasons that Hines elected to take up his case with the Institute for Justice, which he said contacted him in March 2013, a month after the board suspended his license. The law firm has a reputation for fighting government regulations it deems to be unreasonable.  

“At my age and health, I wouldn’t have even bothered,” he said. “But it just seems we’re so behind the times here. We need to redefine ourselves. I’m on my way out of this profession, but it’s been my life, and I’m worried about how things are going to be for the younger generation.”

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