Delegation defense; People v. Ham-Ying; Distinguishing Department of Consumer & Indus. Servs. v. Hoffman; The Public Health Code (MCL 333.1101 et seq.); Charges of unauthorized practice of a health profession; MCL 333.16294; “Practice of veterinary medicine” defined; MCL 333.18805(2); Exceptions to the statute criminalizing unlicensed practice; MCL 333.16215(1) & (7); MI Admin. Code, R 338.4911; Prohibition on veterinary technicians performing as a surgeon; MCL 333.18811(3); Statutory interpretation; People v. Stone Transp., Inc.

In an interlocutory appeal, the court held as a matter of law that defendant could not present a delegation defense to unauthorized practice of a health profession charges because a licensed veterinarian could not delegate the task of veterinary surgery to him where defendant’s veterinary license had been revoked. Thus, it reversed the trial court’s order denying the prosecution’s motion in limine to prohibit him from offering a delegation defense, and remanded. While he argued that no specific statute or administrative rule precludes “the delegation of veterinary tasks (including surgery) to an individual whose license has been suspended,” he ignored MCL 333.16215(1), which “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 . . . .’” Unrebutted testimony at the motion hearing by a licensed veterinarian who sits on the State Veterinary Board and was qualified as a veterinary medicine expert “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.” Further, given that “defendant’s license was revoked for providing substandard care to animals upon which he performed spay and neuter procedures, a determination” had been made that he did “not meet the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.” The court’s conclusion was supported by the fact that veterinary technicians are expressly barred from performing as a surgeon. “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.” The reasoning in Ham-Ying, which concerned the extent to which a licensed doctor may delegate the prescribing of controlled substances to a doctor whose license has been suspended, was also relevant and persuasive.