1

Postoperative Treatment

Patient Abandonment When does

Abandonment Occur?

2

Controlling Practice

Owning and Operating a Dental Hygiene

Service Without the Supervision of a

Dentist Runs Afoul of the Dental Law

“A dental hygienist may practice only under the supervision of a licensed dentist,” which means that a licensed dentist must be physically present during the performance of such acts and such acts are being performed pursuant to the dentist’s order, control and approval.

Issue

What is the scope of practice of a dental hygienist?

Facts

Defendant Alice DeLancy was Issued a license to practice dental hygiene in September 1967. In November 1981, defendant opened her own practice, “The Smile Clinic,” in which she performed various dental hygiene services in exchange for compensation. Ms. DeLancy was not supervised by a licensed dentist in her performance of these services, as is required by state law. On March 8, 1982 the North Carolina Board of Dental Examiners Issued a Notice of Hearing, which alleged that Ms. DeLancy had violated the law requiring supervision of dental hygiene services. After a hearing on the matter, the board made findings of fact and conclusions of law and entered the following order:

1. License No. 348 Issued to Respondent for the practice of dental hygiene is suspended for a period of fourteen (14) months commencing upon surrender of such license and her current renewal certificate to the board at its offices in Raleigh. Surrender is to be made on or before 5:00 p.m. on the seventh (7th) day following the date of this order.

 

2. On the sixtieth (60th) day after her license and renewal certificate are surrendered to the board, said license and renewal certificate shall be restored to Respondent upon her written consent to the following conditions:

1. She shall not, for a period of twelve (12) months, own, manage, supervise, control or conduct herself or by and through another person or persons any enterprise wherein acts or practices enumerated in the code are done, attempted to be done, or represented to be done.

 

2. She shall, for a period of twelve (12) months, violate no provision of the Dental Practice Act, the Dental Hygiene Act, or the Board’s rules and regulations.

Following this order, the defendant filed a “petition for judicial review and for declaratory judgment, and motion for stay” of the final agency decision in Wake County Superior Court, which brought about this case.

Analysis

The state code provides:

1. The North Carolina State Board of Dental Examiners shall have the power and
   authority to

1. Revoke or suspend a license to practice dental hygiene;

    

2. Invoke such other disciplinary measures, censure or probative terms against a licensee as it deems proper;

in any instance or instances in which the board is satisfied that such applicant or licensee:

1. Has engaged in any act or practice in violation of any of the provisions of this Article.

In addition, the dental regulations provide: “A dental hygienist may practice only under the supervision of one or more licensed dentists.” And: “‘Supervision’ as used in this Article shall mean that acts are deemed to be under the supervision of a licensed dentist when performed in a locale where a licensed dentist is physically present during the performance of such acts and such acts are being performed pursuant to the dentist’s order, control and approval.”

The record shows that the respondent’s performance of functions constituting the practice of dental hygiene has not been pursuant to the order, control and approval of a licensed North Carolina dentist nor was a licensed North Carolina dentist physically present at the time of performance of such functions by the respondent.

A reading of the above-quoted statutes makes it clear that defendant violated these provisions by operating her practice without the supervision of a licensed dentist. Thus, the board is vested by statute with authority to discipline Ms. DeLancy for that violation. Indeed, this much was not disputed in the case. The single narrow question before the court is the propriety of the Board’s choice of sanctions.

In her petition for judicial review, Ms. DeLancy first claims that the board exceeded its statutory authority and committed “error of law” in imposing a fourteen month suspension of her license “with restoration conditioned upon agreement to unlawful conditions.” The heart of defendant’s argument is that the condition requiring Ms. DeLancy to forego owning, managing, supervising or controlling a dental practice for a twelve-month period, is unrelated to the violation which was the subject matter of the administrative proceeding and is thus unlawful. This lack of relationship between the violation and sanction imposed, she contends, renders the board’s actions arbitrary and capricious and its order “unsupported by findings or evidence.”

We do not agree that there is no reasonable relationship between defendant’s violation of the statutes requiring that her work be properly supervised and the sanction imposed by the board. While petitioner focuses on the board’s prohibition of ownership, we think it clear from our consideration of the record as a whole and the board’s order in particular that the board’s concern is with control. Whether defendant owns or merely manages an enterprise in which dentistry is practiced, she is likely to exercise a good deal of control over the existence and extent of supervision provided by dentists to dental hygienists in that practice. The record before the board and before this Court suggests that Ms. DeLancy is not in personal agreement with the legislative judgment that such supervision offers important protection to the public interest.

Further, she has demonstrated a willingness to act on her personal disagreement by deliberately violating the statutory provisions. Agreement by defendant to the above condition would merely require that she work for a twelve-month period in a setting that offers both less opportunity and less financial incentive to “take shortcuts” in regard to supervision than would be available in a practice owned or managed by her. Because we believe that the condition is reasonably related to the violation complained of, the Board did not exceed its statutory authority in imposing this particular “probative term.” For the same reason, the board did not act in an arbitrary and capricious fashion.

Conclusion

The condition of restoration of a dental hygienist’s license whereby in lieu of an additional 12-month suspension the hygienist agreed to forgo owning, managing, supervising or controlling any dental practice that was related to the hygienist’s violation of statutory prohibitions of unsupervised dental hygiene practice did not exceed the statutory authority vested in the Board of Dental Examiners.

Citation

Matter of DeLancy (313 S.E.2d 880) April 17, 1984.

3

Limited Practice

Dentist Wants to Announce That His Practice is

“Limited to” Pedodontics Without Examination

as a  Specialist in Pedodontics; First Amendment No Bar

Statute and regulation governing licensing of dentists as specialists was not unconstitutionally vague as applied to a dentist who wished to make unqualified announcement that he was limiting his practice to specializing in pedodontics when that announcement was clearly prohibited both under the statute and regulation. Such statutes directly advance important state and public interests in health, safety and welfare.

Facts

Plaintiff Parmley filed a complaint with the Administrative Hearing Commission seeking an order that would declare that he had satisfied the requirements for certification as a pedodontist without having to complete an examination, as is required by the regulations. He asked the court to direct the Missouri Dental Board to Issue him a specialty license so he could advertise his specialty.

Plaintiff graduated in June 1960 from the St. Louis University School of Dentistry and was subsequently licensed as a dentist in this state. He then began to limit his practice exclusively to pedodontics. Pedodontics is a branch or specialized area of dentistry concerned with the dental care of children.

Within the structure of the American Dental Association (ADA), there are eight specialties, one of which is pedodontics. Each of those specialties has its own certification body, known as an “American board.” For example, the certifying body in this case would be the American Board of Pedodontics. To be a member or what is termed a “diplomate” of the board, an applicant must have completed two years of graduate training in pedodontics and passed an examination. In addition, each of the American boards must have a parent or sponsoring organization in order to be recognized by the ADA. (The eight specialties are: dental public health; endodontics; oral pathology; orthodontics; oral and maxillofacial surgery; pedodontics; periodontics; and prosthodontics.)

At the time plaintiff began to limit his practice, he could ethically announce limitation of his practice only under certain conditions. Section 18 of the ADA Principles of Ethics stated that:

The dentist must be a diplomate of a certifying board approved by the American Dental Association for the indicated area of dentistry; or he must be a member of or be eligible for membership in, a specialty society officially related to a certifying board approved by the American Dental Association for the indicated area of dentistry; or he must have a state license in the indicated area of dentistry if he practices within a state which licenses dentists who engage in specialty practice.

In 1964, the ADA Council on Dental Education revised its rules to provide that after January 1, 1965, a dentist must complete two years of graduate education before he could ethically announce his limitation of practice. A grandfather clause allowed such an announcement by those dentists who were eligible for membership in the Academy and had limited their practice before January 1, 1965. Plaintiff then became a member of the American Academy of Pedodontics in October 1964 and was promoted to an active member of that organization in 1969. Thereby, under the ADA Principles of Ethics, plaintiff could ethically announce his limitation of practice.

On December 20, 1967, the plaintiff was notified by the ADA that he no longer would be listed as a pedodontist in the American Dental Directory because he had not obtained a Missouri specialty license. Nearly thirteen years later, plaintiff applied for but was denied a specialty license by the Missouri Dental Board because he did not meet the statutory requirements.

Analysis

Appellant first contends that he has satisfied the requirements for licensure and certification without examination as a specialist in pedodontics.

The statute states:

1. The board shall upon application and without examination Issue a specialist’s certificate to any registered and currently licensed dentist in Missouri who has been certified in any specialty by an American board recognized by the American Dental Association.

The central issue then is whether the phrase, “American board recognized by the American Dental Association,” may be interpreted broadly enough to encompass appellant’s membership in the Academy. The primary rule of statutory construction is to ascertain the true intent of the legislature and to construe the statute accordingly. In doing so, the words or phrases should be considered in the light of their plain and ordinary meaning.

The evidence below shows that the ADA recognizes only the American Board of Pedodontics as having certification power and not the Academy. The ADA has no direct control over the Academy whose sole function is to further that particular field of specialization. In fact, the Academy itself concedes that the only body with certification power is the American Board of Pedodontics and that membership in the Academy does not constitute certification as a specialist in the field of pedodontics.

Appellant’s argument that his membership in the American Academy of Pedodontics is sufficient to satisfy the statutory requirements for licensure is misplaced and, if adopted, would reject the plain meaning of the statute as evidenced by the above facts. The American boards recognized by the ADA in each area of specialization are the only organizations that satisfy the unambiguous language of the statute

The clear intention of the legislature was to limit specialty licensure and certification to those dentists who have successfully completed an examination approved and administered either by the Missouri Dental Board or the ADA through its recognized American boards. A contrary interpretation by this court would thwart this intent and allow simple membership in a specialty organization and a limited practice to circumvent the requirements imposed by the legislature to protect the citizenry of this state.

Appellant failed to show that he is a “diplomate” of the American Board of Pedodontics, so as to require the Missouri Dental Board to Issue him a license. The judgment below to dismiss appellant’s complaint is supported by substantial evidence.

Appellant Parmley next maintains his First Amendment rights have been curtailed impermissibly by Missouri statute, in that: 1) he is not permitted to advertise a “specialty” in pedodontics; and 2) he must accompany any announcement that his practice is “limited to” pedodontics with a disclaimer notifying readers he is not licensed or otherwise recognized as a pedodontist by this state.

No argument can be made that the practice of pedodontics is unlawful; likewise, no serious argument can be advanced that one qualified to advertise as such misleads or deceives the public. To this extent at least, respondent is correct in claiming this dispute concerns “the right of the state to safeguard the public health by establishing qualifications for dental specialty licensure. It is the reasonableness of applying that authority in the manner chosen which remains to be addressed.

The state has a substantial and long-recognized interest in maintaining quality medical care for residents; this of necessity calls for some mechanism by which to police the ranks of health professionals to sustain a chosen level of competence among them.

To protect the public from those unqualified to practice in a specialty field, the state must apply some apparatus to screen those who would promote their services as such despite their inabilities. The state’s choice here was reasonable: it ensures that only qualified persons will promote themselves, and that the public will be apprised when a limited though unqualified practitioner who has no specialty license purports to bear such qualifications.

The general public requires some uniform standard of minimal competence, and the ability to rely on each and every representation that a particular dentist in fact qualifies as a specialist in pedodontics.

The requirements of the dental practice act, then, directly advance important state and public interests in a manner which does not trench significantly on appellant’s first amendment rights, especially when these are balanced directly against the state and public interests cited.

The statute is sustained against appellant’s First Amendment challenge.

Keys

Statutes prohibiting any announcement in any form including the term “specialist” or phrase limited to specialty, unless the dentist named in conjunction with the term or phrase, or responsible for the announcement, holds a valid certificate and license evidencing that he is a specialist, and further requiring that announcement containing any of the terms denoting recognized specialties include a notice that the dentists in the practice were not licensed in the state as specialists in advertised dental specialties directly advanced important state and public interests in health, safety and welfare in a manner which did not entrench significantly on First Amendment rights of dentists who sought certification as specialists without examination.

Citation

Parmley v. Missouri Dental Board (719 S.W.2d 745) Nov. 18, 1986.

4

Direct Threat

Cavity-Filling Procedure on a Patient

With HIV Not an Exception to the

Americans With Disabilities Act

A patient infected with HIV brought this action under Americans with Disabilities Act (ADA) and Maine Human Rights Act against a dentist who refused to treat her in his office. The court held that the dentist’s performance of cavity-filling procedure on the patient did not pose “direct threat” to others.

Issue

When can a dentist not treat a patient with HIV?

Facts

Ms. Abbott, who was infected with the Human Immunodeficiency Virus (HIV), went to Dr. Bragdon’s Bangor, Maine office for a dental appointment in September 1994; that she was then in the asymptomatic phase of the disease and so informed the dentist; and that, after Dr. Bragdon discovered a cavity, he refused to fill it in his office. Ms. Abbott sued, claiming violations of the Americans With Disabilities Act (the ADA), and the Maine Human Rights Act.

It is settled that asymptomatic HIV constitutes a disability under the ADA, and thus the sole remaining question is whether performance of the cavity-filling procedure posed a “direct threat” to others and thereby came within an exception to the ADA’s broad prohibition against discrimination. A direct threat is defined as “a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services.”

Analysis

In reflecting Dr. Bragdon’s direct threat defense, the court relied upon its reading of (i) the 1993 Dentistry Guidelines (the Guidelines) formulated by the Centers for Disease Control (CDC), and (ii) the Policy on AIDS, HIV Infection and the Practice of Dentistry (the Policy) propounded by the American Dental Association (the Association). Each of these documents indicated to it that the use of so-called “universal precautions” would render the risk of performing the cavity-filling procedure in a dental office insignificant.

The CDC Guidelines call the universal precautions “effective for preventing hepatitis B, acquired immunodeficiency syndrome, and other infectious diseases caused by bloodborne viruses.”

Ms. Abbott proffered the opinions of several prominent experts to the effect that, in 1994, the cavity-filling procedure could have been performed safely in a private dental office, as well as proof that no public health authority therefore had Issued warnings to health care providers disfavoring this type of treatment for asymptomatic HIV-positive patients.

Conclusion

Dentist’s performance of cavity-filling procedure on a patient with HIV did not pose “direct threat” to others as defined by the CDC. Thus, a dentist is required to take the accepted “universal precautions” prescribed in Dentistry Guidelines formulated by CDC, and Policy on Acquired Immune Deficiency Syndrome (AIDS), HIV Infection and Practice of Dentistry propounded by American Dental Association. A dentist cannot refuse treatment, regardless of his opinion of the risk, nor can he require precautions in addition to the CDC guidelines..

Citation

Abbott v. Bragdon (163 F.3d 87) Dec. 29, 1998.

5

Uninserted Dentures

Dentist Files a Claim for Services Not

Performed and Has His License

Suspended

A dentist brought this proceeding to review a decision of the New York Commissioner of Education suspending his license to practice dentistry. The court held that: (1) the dentist’s due process rights were not denied by the patient’s absence at the hearing; (2) the hearing board was not bound to credit dentist’s contention that misrepresentation on the insurance claim form that the services had been completed when in fact the dentist had not inserted the dentures in the patient’s mouth resulted from negligence, not fraudulent intent; (3) the acts involved permitted inference of wrongful behavior; (4) the suspension could not be characterized as shocking to one’s sense of fairness; and (5) the determination of the Commissioner was supported by substantial evidence and would not be disturbed.

Issue

Filing a claim for services not actually performed is a ground for disciplinary action against the dentist.

Facts

Defendant was charged with the fraudulent practice of dentistry and unprofessional conduct. Both charges were premised on allegations that defendant requested and received payment of $320 from Group Health, Inc. (G.H.I.) for services not actually performed. A hearing panel found him guilty of both charges and the Regents Review Committee accepted the panel’s findings but modified the proposed penalty. The Commission of Education accepted the committee’s findings and imposed concurrent suspensions of defendant’s license for one year, with execution of the last 10 months stayed, and a three-year period of probation. This case was commenced in which the defendant contends that the determination is not supported by substantial evidence, is arbitrary and capricious, and that the discipline imposed is harsh and excessive.

Analysis

The Court of Appeals has made clear that the scope of appellate review is limited to ensuring that the determination before the court is supported by substantial evidence. Accordingly, it is not the prerogative of a reviewing court to substitute its judgment for that of the agency’s determination when the record reasonably supports the agency’s conclusion. The record here shows that despite having submitted a claim form stating that the services had been completed, defendant in fact had not inserted the dentures in the patient’s mouth. Although substantial services were performed, the Issue is whether the services were completed as certified in the defendant’s claim, which he concedes was prematurely filed.

There is no merit to the contention that the defendant’s due process rights were denied by the patient’s absence at the hearing. Contrary to the defendant’s argument, the actual complainant is not the patient but G.H.I., which was “just as much entitled to true medical reports and bills as are the patients.”

Nor was the board bound to credit the defendant’s contention that the misrepresentation resulted from negligence, not fraudulent intent. The acts involved permit an inference of wrongful behavior. Finally, the court could not characterize the instant suspension as shocking to one’s sense of fairness. The modified penalty reflects due consideration of the refund to G.H.I. and the actual treatment by an associate who submitted the claim. In the court’s view, the determination of the commissioner is supported by substantial evidence and should not be disturbed.
Conclusion

The determination of the Commissioner of Education suspending the dentist’s license to practice dentistry for having engaged in fraudulent practice of dentistry and unprofessional conduct by requesting and receiving payment from group health insurer for services not actually performed was supported by substantial evidence on record showing that, despite having submitted claim form stating that the services had been completed, dentist in fact had not inserted dentures in patient’s mouth, and thus determination would not be disturbed.

Suspension of the dentist’s license for his having engaged in fraudulent practice of dentistry and unprofessional conduct by requesting and receiving payment from the group health insurer for services not actually performed could not be characterized as shocking to one’s sense of fairness.

Citation

Shmelzer v. Ambach, as Commissioner of Education of the State of New York
(Cite as: 86 A.D.2d 901, 448 N.Y.S.2d 270) Feb. 11, 1982.

6

Across Stateline

Disciplinary Action in One State Can

Affect A Dentist’s License to Practice

Dentistry in Another State

This proceeding was brought for review of an order of the Missouri Dental Board which revoked a dentist’s license and certificate to practice in Missouri. The court held that: the order of the Tennessee Board of Dentistry revoking the dentist’s practice privileges in that state for “unprofessional, dishonorable or unethical conduct” warranted disciplinary action in Missouri.

Issue

Disciplinary action in one state can affect a dentist’s license to practice dentistry in another state. A rogue dentist could otherwise roam from one state to another requiring each state to prove the allegations all over.

Facts

The decision under review is an order of the Missouri Dental Board, which revoked dentist Holmes’ license and certificate to practice dentistry in Missouri. The order followed a decision of the Administrative Hearing Commission, which sustained a complaint filed by the board against Dr. Holmes which charged that Dr. Holmes was subject to Missouri disciplinary action by reason of an earlier order of the Tennessee Board of Dentistry which had revoked Dr. Holmes’ practice privileges in that state. The
Tennessee revocation order had been based upon the “unprofessional, dishonorable or unethical conduct” of Dr. Holmes, and it was the position of the board that the Tennessee action subjected Dr. Holmes to board disciplinary action in Missouri under statutes, which gives as one of several grounds for Missouri disciplinary action:

Disciplinary action against the holder of a license or other right to practice any profession regulated in this chapter granted by another state ... upon grounds for which revocation or suspension is authorized in this state.

The Administrative Hearing Commission after an evidentiary hearing entered an order sustaining the board’s position, which order, as noted above, gave the board authority to proceed with disciplinary proceedings.

Analysis

The fulcrum of the case is the statutory phrase, “grounds for which revocation or suspension is authorized in this state.” Dr. Holmes argues here, as he has maintained throughout, that the “unprofessional, dishonorable or unethical conduct” of the Tennessee statute, the ground upon which Tennessee had revoked Dr. Holmes’ license, was not a “ground for which revocation or suspension is authorized in this state”.

The board, on the other hand, insists that Tennessee’s “unprofessional, dishonorable or unethical conduct” is the same as Missouri’s ground for disciplinary action – “misconduct ... or dishonesty in the performance of, or relating to one’s ability to perform, the functions or duties of the profession of dentistry.” The Administrative Hearing Commission sustained the board’s position.

It is hard to think of any behavior of a dentist which would constitute “misconduct ... or dishonesty in the performance of, or relating to one’s ability to perform, the functions or duties of” a dentist which would not also be encompassed by the Tennessee statutory language of “unprofessional, dishonorable or unethical conduct”. The phrases mean substantially the same, and they are directed at a range of misbehavior, which has been attempted to be reached by various statutory variations of the term “professional misconduct”.

Dr. Holmes argues that the board should have been required to prove specific acts of misconduct on his part, but this court thought it was sufficient that the board proved that the other state had revoked Dr. Holmes’ license on a ground, which was also a ground for revocation in Missouri. The theory of this particular ground for revocation, i.e., the disciplinary action taken by the other state, is that the second state should not be required to prove again what has already been proved in the first state.

Dr. Holmes’ infractions, which caused the Tennessee revocation occurred during two years’ practice in Gallatin, Tennessee. He was in the process of purchasing a dental practice in Sikeston and Charleston, Missouri, when the Tennessee revocation was ordered on August 19, 1982. He perhaps was commencing practice in Missouri when the present proceedings were initiated by the board’s filing its complaint on November 3, 1982. A dentist disqualified by his misconduct from the practice of dentistry in one state (and found to be so disqualified after the opportunity for a fair hearing) is equally as disqualified across a state line, and he should not be permitted to impose upon the “foreign” state the onus of proving the underlying facts of his misconduct.

Furthermore, the Administrative Hearing Commission had before it the Tennessee petition upon which the Tennessee consent order was based. That petition charged with a fair degree of specificity: “The respondent is guilty of ‘unprofessional, dishonorable or unethical conduct’ in his practice of dentistry by proposing unnecessary treatment, by submitting incorrect or questionable insurance claims, by charging excessive fees, by exhibiting anger and poor attitudes toward and/or in the presence of patients, by misrepresenting what dental work he had performed and by other acts or omissions in his practice of dentistry.”

Conclusion

The order of Tennessee Board of Dentistry revoking the dentist’s practice privileges in that state based upon “unprofessional, dishonorable or unethical conduct,” a ground for revocation under its dental code, warranted disciplinary action against the dentist in Missouri for “misconduct or dishonesty in the performance of, or relating to one’s ability to perform, the function or duties of” the profession of dentistry; the Missouri Board was not required to prove specific acts of misconduct.

Citation

Holmes v. Missouri Dental Board (703 S.W.2d 11) Nov. 5, 1985.

7

Growing Grass

Dentist Denies Knowledge of

Marijuana In His Back Office

Florida Department of Professional Regulation affirmed the hearing officer’s finding that the dentist illegally procured marijuana, and he appealed. The court found that the dentist had constructive possession of marijuana plants found in a back room of the building which he owned, in which he practiced dentistry, and to which room only the dentist and his son had keys.

Facts

Defendant, a practicing dentist, owned the building in which he carried on his dental practice. Defendant and his son renovated a back room by partitioning it into two rooms. One of the rooms was used for general storage and the other was kept locked with only the defendant and his son having keys. Defendant’s dental assistants discovered the locked room had what appeared to be marijuana plants growing therein. One of the plants was delivered to the police and eventually led to the issuance and execution of a search warrant. When the search warrant was being executed defendant denied he had a key to the room, so the police kicked the door in. Later, they found a key to the room in the defendant’s desk drawer. The room contained 31 marijuana plants, potting soil, fertilizer, and water canisters.

The Department of Professional Regulations filed an administrative complaint against the defendant, alleging violation of its regulations.

Analysis

Although defendant contended the marijuana belonged to his son and that he was unaware of its existence, the hearing officer rejected that contention and found the doctor had constructive possession of the contraband in accordance with Florida law on constructive possession. Specifically, the hearing officer found the defendant guilty of procuring a contraband drug in violation of the dental code.

Finally, the defendant contends that even if he did have constructive possession of the contraband that is not a violation of the dental regulations. This court found otherwise. By definition, to procure means to possess. By definition, to procure means to possess. To be in possession is by default a violation of the code of ethics.

Conclusion

Dentist was properly found guilty of procuring marijuana by the Department of Professional Regulation, notwithstanding his claim that the marijuana belonged to his son and that he was unaware of the existence of 31 marijuana plants in a back room of the building which he owned and practiced dentistry in.

Dentist’s constructive possession of marijuana plants was a violation of statute relating to procurement of a contraband drug; by definition, this is a violation of the regulations governing dental practice.

Citation

In re Sturrup (456 So.2d 927) Sept. 5, 1984.

8

Blessed Ignorance

Dentist Denies Knowledge His Hygienist

Administered Anesthetic In His Absence;

Implied or Tacit Permission

Dentist’s wife, a dental hygienist herself, administered an anesthetic to a patient, an operation which a hygienist is precluded from performing. The evidence against her, resulting in suspension of her license, was more convincing than the evidence against the dentist who did not know of her actions nor did he authorize them.

Issue

The dental code allows the board to suspend a dentist’s license if the dentist permits his employee to perform an unauthorized operation. The permission does not have to be given only by an express order of the dentist; it may be implied or tacit.

Facts

Richard Bach appeals from an order of the Florida Board of Dentistry suspending him from the practice of dentistry for a period of six months, and Carol Ann Bach appeals from an order suspending her from the practice of dental hygiene for a period of one year. Both attack the competency and substantiality of the evidence supporting the findings of fact and conclusions of law. As to Mrs. Bach, the wife of Dr. Bach and also his dental hygienist, the record clearly supports the findings entered. The evidence relating to Dr. Bach is circumstantial, and the resolution of the question whether the order of suspension can be sustained turns on whether one can logically infer from the evidence that Dr. Bach permitted his dental hygienist to administer an anesthetic, an operation which a hygienist is precluded from performing.

Dr. Bach argues the board presented no evidence showing that his dental hygienist performed a prohibited operation under his supervision, and thus it cannot be inferred he knew and permitted his employee to so act. He points out that the evidence clearly shows he was not physically present during the two occasions Mrs. Bach administered the anesthesia to a patient. Therefore, the only way he can be held accountable for the acts of his employee is for the board to present evidence which it did not disclosing that he ordered Mrs. Bach to perform a prohibited act.

The Board responds that the dentist was negligent in allowing his assistant to administer the anesthesia, and thus should be held accountable.

Analysis

The standard of simple negligence does not apply to the revocation or suspension of a dentist’s license. The code provides that “the board shall suspend or revoke the license of any dentist who shall permit any dental hygienist operating under his supervision to perform any operation other than that permitted under the provision of this code.”

Where statutes provide grounds for revocation of licenses, those provisions must be strictly construed and strictly followed because the statute is penal in nature. Additionally, when a statute authorizes revocation of a license for certain enumerated causes, the license cannot be revoked for any ground other than those causes specified.

Another applicable section requires as a precondition to the suspension of a dentist’s license that the dentist permit his employee to perform an unauthorized operation. This does not mean that such permission may only be given by express order when the dentist is not present at the time the employee carries out an illegal activity. The word “permit” includes, within its definition, consent, authorization, toleration and the granting or giving leave to do something. The definition appears to recognize implied or tacit permission. Therefore, the Issue becomes, does the evidence reveal Dr. Bach’s implied approval of Mrs. Bach’s illegal acts? The answer is resolved by consulting the law of agency.

Before one may infer that a principal ratified an unauthorized act of his agent, the evidence must demonstrate that the principal was fully informed and that he approved of the act. It is generally the rule that the doctrine of constructive knowledge does not apply to bring about ratification. The principal is charged only upon a showing of full knowledge, and not because he had notice which should have caused him to make inquiry, which in turn would have brought to his attention the knowledge of the unauthorized act of the employee.

Therefore, the finding by the hearing officer that Dr. Bach knew or should have known of his employee’s acts because they were performed openly and without any attempt to conceal them on two separate occasions is simply not consistent with the law of agency. There is no duty imposed upon the principal to make inquiries as to whether his agent has carried out his responsibilities. The principal “has a right to presume that his agent has followed instructions, and has not exceeded his authority.” And, whenever he is sought to be held liable on the ground of ratification, either express or implied, it must be shown that he ratified upon full knowledge of all material facts, or that he was willfully ignorant, or purposely refrained from seeking information, or that he intended to adopt the unauthorized act at all events, under whatever circumstances.

The evidence does not show that Dr. Bach had full knowledge of his agent’s unauthorized activities. Nor may such knowledge be imputed to him. Finally, the fact that his agent, on two separate occasions when Dr. Bach was not present, routinely injected an anesthetic into the gums of a patient is hardly consistent with any conclusion that Dr. Bach was willfully ignorant or purposely refrained from seeking information which would have disclosed the illegal activity.

Conclusion

Our construction is consistent with the interpretation given the dental licensing laws by the Washington Supreme Court prohibiting the hiring of a non-licensed dentist. The court stated that if a licensed dentist willfully and intentionally flaunted the law by hiring an unlicensed dentist, he demonstrates his lack of trustworthiness to continue the practice of dentistry, but if he inadvertently or negligently employs a non-licensed dentist, such conduct does not indicate a state of mind which would be characterized as that untrustworthiness which would constitute a ground for revocation. In the absence of Dr. Bach’s knowledge of his employee’s unauthorized acts, it cannot be concluded that he impliedly permitted or ratified them.

The order suspending Mrs. Bach’s license is affirmed and that suspending Dr. Bach’s license is reversed.

Keys

Evidence supported the finding that the dental hygienist had administered an anesthetic, an operation which a hygienist is precluded from performing.

Where a statute provides grounds for revocation of a license, those provisions must be strictly construed and strictly followed because the statute is penal in nature.

When a statute authorizes revocation of a license for enumerated causes, the license cannot be revoked for any ground other than those causes.

Within statutes providing for suspension or revocation of a license of any dentist who shall “permit” any dental hygienist operating under his supervision to perform any operation other than that permitted under the statute, the word “permit” includes consent, authorization, toleration and granting or giving leave, but the statute does not require that the permission may only be given by an express order when the dentist is present at the time employee carries out illegal activity.

Before one may infer that the principal ratified an unauthorized act of his agent, evidence must demonstrate that the principal was fully informed and that he approved of the act.

There is no duty imposed upon a principal to make inquiry as to whether his agent has carried out his responsibilities and the principal has a right to presume that his agent has followed his instructions and has not exceeded his authority.

Citation

Bach v. Florida State Board of Dentistry (378 So.2d 34) Nov. 30, 1979.

9

Handsome Dentist

Improper Sexual Conduct

Minnesota Board of Dentistry suspended a dentist’s license for making suggestive or improper advances to patients, and for improper or unauthorized prescription of a legend drug. The dentist appealed and the court found that (1) the evidence supported the finding that the dentist made suggestive or improper advances to patients, justifying suspension of his license; (2) the evidence supported the finding that the dentist prescribed tetracycline, which is a legend drug, and that such conduct justified suspension of the dentist’s license.

Issue

What constitutes improper sexual conduct?

Facts

1. IMPROPER ADVANCES

Wang is a licensed dentist and certified oral maxillofacial surgeon, and he has a Ph.D. in medical pharmacology. Wang has been practicing oral surgery in Willmar, Minnesota, since 1976. In December 1985, the complaint panel of the board initiated this proceeding to determine whether Wang’s license should be suspended or revoked, for making “suggestive, lewd, lascivious, or improper advances” to patients, in violation of state statutes.

The charges, as to Wang’s alleged improper advances, concerned three female patients: D.C., C.J. and N.G. The administrative law judge (“ALJ”) made the following findings of fact on this Issue.

D.C. is a 24-year-old female who was treated by Dr. Wang in the spring and summer of 1983 for the removal of her wisdom teeth. Before the June 1983 appointment to remove the last wisdom tooth, she had become engaged. During the appointment, Dr. Wang told D.C. that she was a “sweetheart” and that she had “broken his heart” because of the engagement. On July 5, 1983, when Dr. Wang came into the room to remove the stitches, he again stated that D.C. was a “sweetheart” and that she had “broken his heart”. After the stitches were removed, D.C. got out of the dentist chair and Dr. Wang embraced her. D.C. pulled away and entered the hallway leading to the waiting room area. Dr. Wang approached her and attempted to kiss her. However, D.C. turned her head and the “kiss” glanced off her cheek. D.C. then hurried out of the office.

C.J. was treated by Dr. Wang in the fall of 1983 for the removal of her wisdom teeth and is currently 24 years old. After the surgery had been completed, C.J. awoke from the anesthesia. Right after she awoke Dr. Wang touched one of her breasts, rubbing it in a circular motion. Dr. Wang stated to her, “I bet you have a lot of guys chasing you.” She responded, “No, I have not been out on a date for about a year and a half.” Dr. Wang then said, “You have not had sex for a year and a half?” C.J. did not respond. Dr. Wang then touched her other breast in the same manner as the first.

N.G. is a 24-year-old female who was treated by Dr. Wang on February 11, 1984 for the removal of wisdom teeth. After the surgery had been completed, Dr. Wang asked her if she had a lot of boyfriends, if she got asked out a lot and if she got lonely for male companionship. Dr. Wang then asked her if she would like him to provide her with male companionship. N.G. responded negatively to all of these questions. At the same time as the conversation was going on, Dr. Wang began rubbing her left hand, which was laying across the upper part of her stomach. As he rubbed his hand on her hand, he also rubbed his hand against her breasts. N.G. pulled her left hand away when she felt the contact with her breasts. Later during the “recovery”, N.G. told him that she wanted to go but Dr. Wang stated that she needed to stay for a few more minutes because he was afraid that he would not be able to see her again. Dr. Wang then looked at N.G. and asked her if she thought he was handsome.

The ALJ concluded that the preceding conduct was a violation of state statutes.

2. IMPROPER PRESCRIPTION

The ALJ made the following findings of fact as to Wang’s prescription of tetracycline:

On September 10, 1982, Dr. Wang extracted a wisdom tooth from David. Dr. Wang noticed that David Jefferson had acne on his face. Gordon Jefferson, David Jefferson’s father, contacted Ray Pierskalla, a pharmacist in the same building as Jefferson and Dr. Wang, to procure medication to treat his son’s acne in early 1983. Mr. Jefferson stated that he was a medical doctor. Subsequently, Pierskalla discovered that Mr. Jefferson was not a licensed M.D. On Saturday, March 26, 1983, Mr. Jefferson telephoned Mr. Pierskalla from his office to order a refill of tetracycline for his son. Dr. Wang then walked into Jefferson’s office and was asked by Jefferson to authorize the prescription of tetracycline. Dr. Wang consented, talked to Pierskalla on the phone, and authorized the prescription for David Jefferson. Subsequently, Dr. Wang authorized refills of the prescription for tetracycline on April 23, July 9 and August 22, 1983.

The ALJ concluded:

Dr. Wang violated Minnesota statutes by prescribing tetracycline to David Jefferson and authorizing refills on that prescription through August of 1983.

The board adopted the ALJ’s findings and conclusions and ordered Wang’s license suspended for at least one year. The order provides for a stay of suspension after 60 days provided Wang complies with certain conditions, including that he pay $35,000 “to help defray the costs the board incurred in bringing these proceedings.”

Analysis

The board concluded that Wang’s behavior toward the three female patients violated the following statute:

The board may suspend or revoke, limit or modify by imposing conditions it deems necessary, any license to practice dentistry upon any of the following grounds:

(6) Conduct unbecoming a person licensed to practice dentistry or conduct contrary to the best interest of the public, as such conduct is defined by the rules of the board.

The board’s rules define such conduct to include “making suggestive, lewd, lascivious, or improper advances to a patient.”

Wang argues the board’s findings and decision are not supported by substantial evidence. “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

Wang’s argument is based on three grounds. First, Wang’s auxiliaries testified that they were either present in the room or nearby when the incidents allegedly occurred, and that the incidents did not take place. Second, he argues the patients might have imagined the incidents because of the after-effects of anesthesia. Finally, he argues
the alleged behavior is out-of-character for Wang.

The testimony of Wang and his auxiliaries conflicted with the testimony of the complaining witnesses. The ALJ’s memorandum decision shows he carefully evaluated the evidence, found the testimony of the complaining witnesses more credible and rejected the contentions Wang now makes to this court.

It should be noted that the court cannot substitute its judgment for the agency’s on the credibility of witnesses. Where, as here, the trier of fact has a choice between conflicting evidence, “its conclusion must stand unless manifestly and clearly contrary to the evidence.” The court found that the board’s decision is not clearly contrary to the evidence.

On the matter of authorizing refills, Wang acknowledges he initially prescribed the medicine, but denies authorizing the refills. The ALJ’s memorandum explains the basis for his decision:

[T]he board’s investigator testified that Dr. Wang told him that he had authorized refills for the prescription. Additionally, the pharmacy records show that three refills were made on the prescription and after each of them there is hand-written “OK Dr. Wang.” Mr. Pierskalla testified that these “OKs” may have been the result of Mr. Jefferson telling him that Dr. Wang had okayed the refill. However, by that time, Pierskalla’s suspicions of Jefferson had been confirmed and the Judge doubts whether Jefferson’s word would have been accepted by the pharmacist. Consequently, the Judge has found that the board has proved, by a preponderance of the evidence, that the refills on the prescription for tetracycline were authorized by Dr.Wang.

The board concluded that Wang’s authorization of the last two refills fell under this statutory ground for suspension: Improper or unauthorized prescription of any legend drug. Tetracycline is a legend drug.

This conclusion, in turn, was based on the conclusion that prescribing tetracycline to treat David Jefferson’s acne was outside the scope of Dr. Wang’s practice in this instance.

The scope of practice an oral maxillofacial surgeon such as Dr. Wang does not include the treatment of acne unless the surgeon is contemplating a procedure, which involves an incision on the facial region. Treatment of acne may then be necessitated to eliminate the risk of infection to the area, which is operated on.

This finding is supported by the testimony of the board’s expert witness, Dr. Daniel Gatto. He explained that the underlying license of an oral maxillofacial surgeon is that of a dentist. His testimony makes clear that prescribing tetracycline to treat acne is outside the scope of practice of an oral maxillofacial surgeon, where the treatment
is unrelated to any dental work.

Wang argues it is unfair to sanction him for “improper or unauthorized prescription” based on an amorphous “scope of practice” standard. We believe the board acted properly. Wang’s prescribing tetracycline to an ex-patient solely to treat acne is so outside the scope of his practice that he cannot complain he did not know it was improper.

Conclusion

Evidence supported the finding that the licensed dentist who was a certified oral maxillofacial surgeon made suggestive or improper advances to patients, justifying suspension of his license under statute, although dentist’s auxiliaries testified they were either present in the room or nearby when the incidents allegedly occurred and that the incidents did not take place, dentist argued the patients might have imagined the incidents because of the aftereffects of anesthesia, and dentist argued alleged behavior was out of character for him.

Evidence also supported the finding that the licensed dentist that the prescribed tetracycline, which was a legend drug, and authorized prescription refills, and such conduct was sufficient to justify suspension of his license for improper or unauthorized prescription a of legend drug, as dentist’s prescribing tetracycline to a former patient solely to treat acne was so outside the scope of dentist’s practice that he could not complain he did not know his conduct was improper.

Citation

Matter of Wang (417 N.W.2d 268 ) Dec. 29, 1987.

10

Retracting Teeth

Inexperienced Orthodontist Disciplined Adequate

Treatment Plan, But Inadequate Treatment

Dentist sought judicial review of discipline imposed on him for providing inadequate orthodontic treatment to a patient. The court held that substantial evidence supported the determination that the dentist provided inadequate orthodontic treatment to his patient.

Issue

A dentist took up orthodontic work after being out of the field for seven or eight years. When a patient’s teeth were in worse shape after two years of treatment the patient complained to the dental board for unprofessional conduct that “would constitute danger to the health, welfare or safety of the patient or the public.”

Facts

On May 1, 1985, Pamela Jean Riethmuller filed a complaint against Dr. Croft with the Arizona State Board of Dental Examiners, essentially stating the following: Dr. Croft, who had been Riethmuller’s regular dentist, commenced orthodontic treatment in approximately May, 1982. After wearing a retainer and then bands, for 27 months, Riethmuller could see improvement in the alignment of her teeth. In September 1984, however, Dr. Croft removed her archwires, and within ten days the teeth began retracting. Dr. Croft advised Riethmuller not to worry, but rendered no further treatment during the following six weeks. At her next visit on October 31, 1984, Dr. Croft
attempted to install a newly-made appliance on her teeth, which did not fit. Dr. Croft told her the appliance must be remade and rescheduled her for an appointment on November 15, 1984.

Riethmuller was dissatisfied with the progress of her treatment. She told Dr. Croft she wanted to obtain a second opinion. Riethmuller was seen by Dr. Charles Wait, an orthodontist, on November 14, 1984. Dr. Wait told her that her archwires should not have been removed without a retainer in place to prevent the teeth from moving, and that it would take at least 17 more months of wearing bands in order for her teeth to align correctly. Riethmuller did not return to Dr. Croft. Dr. Wait completed the treatment.

Meanwhile, Riethmuller filed a request for peer review of Dr. Croft by the Central Arizona Dental Society but did not obtain results which satisfied her. She initiated a complaint with the board, alleging that her extended treatment was made necessary because of Dr. Croft’s mistakes or errors in judgment. She sought reimbursement from Dr. Croft and compensation for expenses incurred with Dr. Wait.

The board is the state agency charged with regulating the practice of dentistry in the state. The board interpreted Riethmuller’s complaint as making the following charges against Dr. Croft: (1) inadequate history and clinical examination; (2) inadequate radiographs; (3) inadequate diagnosis; (4) inadequate treatment plan; and (5) inadequate orthodontics. The board notified Dr. Croft of the charges and advised him that, if true, they would constitute “unprofessional conduct: any conduct or practice which does or would constitute a danger to the health, welfare or safety of the patient or the public.” The board summoned and received all records, documents and other evidence containing information pertinent to Riethmuller’s care and treatment from Dr. Croft and from Dr. Wait.

The board appointed a clinical evaluation committee composed of Drs. Ludwig, Pawloski and Running, and Mr. Lyman, a layman. It conducted a clinical evaluation on June 19, 1985. The doctors examined Riethmuller’s teeth and reviewed the dental records of Drs. Croft and Wait. The committee found no substantiation for the first four charges of the complaint. The committee made no determination concerning the remaining charge of inadequate orthodontics.

To resolve the remaining charge, a meeting was held with the dentists of the board and the two orthodontists. In discussing the orthodontic treatment he had given to Riethmuller, Dr. Croft began by explaining that he had a three-phase treatment plan: (1) to develop the arches with Crozat appliances, (2) to go into straight-wire orthodontic treatment, and (3) to finish up with class two mechanics. He explained that the Crozat appliances developed the arches past the point that he wanted them to and so he kept Riethmuller in “twisted wire for an extended length of time.” After Riethmuller was in the straight-wire treatment phase, Dr. Croft noticed that a mild cross-bite was developing. He removed the archwires to see if the lower arch would change in relationship to the upper arch. He decided he needed to use a Schwartz appliance. Its construction required a fresh impression of the teeth. Dr. Croft stated that there was an extended length of time between taking the impression and getting the Schwartz appliance in Riethmuller’s mouth due to his teaching schedule and problems with laboratories he was using. Additionally, he claimed that Riethmuller did not keep appointments, but his record did not bear out this allegation. He confirmed that the initial Schwartz appliance did not fit. It had to be remade, and at this point communications between Riethmuller and himself broke down.

In answering questions of committee members, Dr. Croft indicated that, although he had been practicing dentistry for 30 years, he had stopped doing orthodontic work during the seven or eight years before treating Riethmuller, at which time he had decided to take up the practice again. His last refresher courses were in 1979 and 1980. He acknowledged initially estimating that Riethmuller’s treatment would take 20 to 27 months, but that after 27 months had passed, she still needed an additional year of treatment. He admitted that if he were treating her now, after having acquired more experience, he could have completed the work in 27 months. He stated that part of his problem had been in not finding good laboratories which would consistently do quality work. He admitted starting Riethmuller’s treatment before he had assembled all of his forms and materials for recommencing orthodontics. Additionally, the evidence showed that Dr. Croft had not kept Riethmuller properly advised of the course of her treatment.

When the committee began its deliberations, the committee chairman looked to Dr. Running for his comments as their orthodontic consultant. Dr. Running began by indicating that the most serious problem presented was the billing matter. The committee members began discussing whether discipline for misrepresentations to the insurance carrier was needed. The committee chairman reminded the committee that they only needed to decide the adequacy of the orthodontic treatment. He said that if the committee found there was evidence of misrepresentation of fees and possible fraud, it would have to make that allegation and hold a separate deliberation hearing on it. At that point, the committee returned its attention to the Issue of orthodontic treatment.

Drs. Moss and Running observed from models of Riethmuller’s teeth that some of her teeth appeared worse in 1984 than in 1982. After addressing additional questions to Dr. Croft, Dr. Running stated his opinion that “[i]n the approximate two year period that [Riethmuller] was being cared for by Dr. Croft, from the start point to the progress point where the progress records were taken, then I would have expected much further and better orthodontic treatment, considering the cooperation of the patient, as to treating orthodontic cases in the standard of the community.”

Dr. Moss stated that Dr. Croft’s intentions apparently had been good but that his ability did not match the intent. Dr. Giordan observed that Crozats “do a beautiful job” but are very difficult to manage. He agreed with Dr. Running that the treatment rendered in the period of time taken was not accomplishing the expected orthodontic results and was not up to the standards of the orthodontic community in this state. He stated that Dr. Croft did not have the expertise to render the treatment in a systematic way to accomplish the proper result. Additionally, Mr. Lyman was concerned about Dr. Croft’s inadequacy in keeping Riethmuller advised as to what was going on with her treatment. The committee concluded with a discussion of what disciplinary measures were appropriate.

In making its formal written report, the committee found that the evidence substantiated the allegation of inadequate orthodontic treatment, falling short of that seen and expected in the orthodontic community, including both the general practitioner and the orthodontic specialist performing orthodontic treatment. The committee concluded that the facts constituted unprofessional conduct and called for disciplinary action. The committee recommended a 36-month probation period for Dr. Croft with terms consisting of: (a) 42 hours of continuing education in orthodontics; (b) the presentation of five cases of orthodontic treatment with complete workup and progress reports; and (c) restitution of the orthodontic fees to Riethmuller and her insurance carrier.

Analysis

The court found that most of the Issues are readily resolved against Dr. Croft merely by reviewing the record. First, the fact that the dental society’s peer review committee found in favor of the dentist on the patient’s request for review did not detract from the finding of the deliberation committee of the State Board of Dental Examiners that the dentist’s orthodontic treatment of the patient was inadequate; the dental society was not affiliated with the board and there had been no agreement to make the peer review determination binding on the board.

Dr. Croft has misstated the record in arguing that the board’s clinical evaluation committee found that the orthodontic treatment had been adequate. That committee found that the “treatment plan” Dr. Croft had elected to use was adequate, but the committee did not make any determination whether the “treatment” actually rendered had been adequate and left that for the deliberation committee to decide. Since inadequacy of the treatment plan and inadequacy of orthodontic treatment were two separate matters, there is no ground for concluding that Dr. Running reversed himself on the Issue of inadequacy of orthodontic treatment merely by going from one committee to the other.

The only substantial Issue is whether, even though the committee had evidence of what had gone wrong with Reithmuller’s treatment, it could have concluded that such treatment had been “inadequate” without any expert testimony being given regarding the standard of care for orthodontic treatment in the community. The committee members relied solely on their own expertise and not on the testimony of any expert witness, when it determined that the treatment fell below that standard of care.

It is well established that a doctor is not liable in negligence for mere mistakes in judgment in treating a patient, but is only liable where the treatment falls below the recognized standard of good medical practice. Ordinarily, in malpractice cases, the applicable standard of care must be established by expert testimony unless the negligence is so grossly apparent that a layman could recognize it. We must determine whether such testimony, necessary in malpractice cases, was also necessary in this disciplinary proceeding where the dentist was charged with providing inadequate treatment, or whether it was appropriate for the committee members to rely on their own expertise as to what is the applicable standard of care.

However, here the majority of the members of both the board and its investigative members were licensed dentists (the board consisted of five licensed dentists, one licensed dental hygienist, and three laypersons). Arizona statutes provide that “the agency’s experience, technical competence and specialized knowledge may be utilized in the evaluation of the evidence.”

Moreover, courts of numerous jurisdictions, including Washington, have held that in a medical disciplinary proceeding before an administrative board comprised of medical practitioners is competent to determine the propriety of medical conduct without the aid of expert testimony. These courts have recognized that expert testimony regarding the propriety of medical conduct could be disregarded by a board of this type and in all probability would have little effect on the decision making process.

The situation is entirely different from that of a trial before a jury or a court. Neither jury nor judge would have knowledge of the standard of care required by a doctor or a dentist. Therefore, expert testimony is needed with respect thereto in order for the jury or the court to reach an informed decision.

Conclusion

Expert testimony was not required in the dental disciplinary matter before the State Board of Dental Examiners; members of the deliberation committee were entitled to rely on their own expertise as to applicable standard of care required for the type of work involved in the disciplinary matter.

Citation

Croft v. Arizona State Board of Dental Examiners (157 Ariz. 203, 755 P.2d 1191) May 3, 1988.

11

Advertising Miscues

Dentist Leaves Root Tip in Patient’s Mouth,

Substitutes Someone Else’s Denture, 

and Runs Afoul of Advertising Rules

In this case involving the Ohio State Dental Board, the court decided three Issues: (1) upon learning that one of the dentists employed by the defendant-dentist had left a root tip in the patient’s mouth, the defendant-dentist failed to inform the patient of the acute hazard to his health this condition presented; (2) there was no evidence to support the charge that the dentist refused to treat a patient who had refused to first execute release from liability; and (3) the dentist had Issued advertisements of a character tending to deceive or mislead the public.

Facts

On May 14, 1980 the board cited Ted A. Haley, D.D.S. for violations of the state dental act. Defendant requested an administrative hearing, which was scheduled for July 16, 1980. In its adjudication order, mailed August 27, 1980, the board found defendant guilty of the following charges:

 “CHARGE 4: That Mr. Walter Gouge underwent oral surgery at the defendant’s office, whereupon a portion of a tooth was left in the patient’s jaw, causing subsequent acute hazard to his health, and that the patient was not informed of this occurrence even though the defendant was aware of same and saw the patient at a subsequent visit to the defendant’s office.

 “CHARGE 5: That Mr. Walter Gouge presented himself to the defendant with acute infection, swelling, and pain, and although Mr. Gouge had been in the course of treatment at the defendant’s office during the immediately preceding days, the defendant refused to treat said acute condition because the patient refused to sign a release from liability.

 “CHARGE 7: That the defendant did, in the course of attempting a reline of a denture belonging to one Elaine Price, lose that denture, and attempt to substitute someone else’s denture in its place. The defendant further attempted to fabricate a replacement for the lost denture, representing that said replacement was at no charge to the patient, after which time the defendant obtained that replacement denture, and refused to return it to the patient. The defendant further refused to refund the patient’s money, unless said patient signed a release from liability.

 “CHARGE 10: That during June, 1979 through January, 1980, the defendant Issued or caused to be Issued, numerous advertisements of a character tending to deceive or mislead the public. Specifically: advertisements deceptively used the term ‘specialist’ when in fact no such specialist existed; advertisements which were run under various trade names, and advertisements failed to contain the names of any dentist-licensees; advertisements indicated a specific price for a set of dentures, and failed to mention that higher-priced dentures were available and in fact promoted when the consumer presented himself at the office.

The board concluded that the foregoing constituted violations of the provisions of the dental code and imposed a twelve-month suspension for each charge, said suspensions to be concurrent.

Analysis

Issue 1: The first complaint by the defendant is that the court erred in finding reliable, probative and substantial evidence to support the dental board’s order that defendant is responsible for the oral surgery performed on Walter Gouge, which resulted in a portion of a tooth being left in that patient’s jaw.

Dr. Haley testified that Dr. Porter performed oral surgery on Mr. Gouge and broke a tooth attempting to extract it. Dr. Haley stated Dr. Porter informed him of the root tip problem and an appointment was made for Mr. Gouge to come back in two days for an extraction by him. On that date, he examined Mr. Gouge and concluded the root tip extraction was too difficult and he told Mr. Gouge to see an oral surgeon, a Dr. Tinkler, for the extraction. Dr. Haley testified Mr. Gouge came back complaining of pain in the area of the root tip and Dr. Dysas saw him and curated the area involved, placed a drain, and put him on antibiotics and referred him to Dr. Tinkler once again.

Dr. Gary Porter, an associate of Dr. Haley, testified he remembered performing multiple extractions on a white male individual and a root tip was left in the patient. He stated this was not unusual as often teeth break in extraction. He stated he referred this patient to an oral surgeon, a Dr. Tinkler. He does not remember the name of the patient. He stated he informed the patient of the root tip problem.

Defendant’s wife, Jean Haley, testified she was present when Mr. Gouge was told by her husband to see an oral surgeon for the removal of his root tip. She testified her husband refused to remove the root tip because he stated it was too difficult a procedure for him to attempt.

Mr. Gouge testified a Dr. Rubin pulled eight of his teeth for permanent dentures and no one told him at the time of the extraction that a root tip had been left in his mouth. He stated he went back several times because of pain in the upper part of his mouth. When he developed an infection, he went back to Dr. Haley’s office where a Dr. Dysas placed a drain tube in the infected area.

As we have noted in other cases in this text, the existence of some reliable, probative, and substantial evidence adduced in support of a finding of an administrative agency is sufficient to support such findings. A court reviewing a decision of an administrative agency is confronted with the Issue of whether the decision is against the manifest weight of the evidence and not whether the board abused its discretion.

Defendant in his first assignment of error and accompanying brief misperceives the finding of the dental board. The finding of the dental board is not that Dr. Haley negligently extracted Mr. Gouge’s teeth, but that upon learning that one of the dentists employed by him had left a root tip in Mr. Gouge’s mouth he failed to inform the patient of the acute hazard to his health this condition presented. There was a dispute in the record whether the patient was told of this condition, and the board as the trier of fact was free to believe or disbelieve the witnesses. Apparently they chose to believe Mr. Gouge’s testimony. There was therefore some reliable, probative and substantial evidence to support the board’s findings. We thus find no error in the trial court’s affirmance of the board on this finding. The first assignment of error was thus overruled.

Issue 2: The second complaint of the defendant is that the court erred in finding reliable, probative and substantial evidence to support the dental board’s order that defendant herein has violated the dental code when he refused to treat patient, Walter Gouge, who refused to first execute a release from liability.

Defendant’s wife testified that on Mr. Gouge’s last visit to defendant’s office he was asked by her to sign a release from liability form prior to defendant treating the patient and he refused. Mr. Gouge testified he was refused treatment on his last visit because he refused to sign a release form. The evidence appears uncontradicted that Mr. Gouge was in pain from an acute infection and swelling. Defendant testified he persistently told Mr. Gouge on all of his visits after his teeth were extracted to get to an oral surgeon for treatment. It is unclear why if Dr. Haley did not wish to treat Mr. Gouge for his root tip problem, he insisted on Mr. Gouge signing a release form. Mrs. Haley testified that her husband was in the doorway immediately behind her when she asked Mr. Gouge to sign a release form.

The dental board apparently felt that since the patient paid defendant’s office for his dental care, the defendant had a continuing duty to monitor his progress after the extraction, and to treat the patient for his acute pain and swelling, and that a “release” before treatment was improper. Certainly, however, the defendant has no duty to risk a hazardous procedure because he initially has treated a patient. Oral surgeons are far more adept at root tip removals, and if in the defendant’s judgment he could not perform such procedure he is not required to do so. What treatment could have been provided Mr. Gouge without removing the root tip is unclear from the record.

Therefore, the court found that there was not probative, reliable and substantial evidence to support charge No. 5 against the defendant. The decision of the board was against the manifest weight of the evidence. The second assignment of error is thus accepted and the charge overturned.

Issue 3: The third question to be decided was whether the court erred in finding reliable, probative and substantial evidence to support the dental board’s order that as to patient, Elaine Price, the defendant did, in violation of the dental code, lose the denture, attempt to substitute someone else’s denture, fail to obtain a replacement denture or fail to refund the patient’s money.

Mrs. Price testified that she went to the defendant’s dental offices as a result of advertisements she had seen for the purpose of having her lower denture relined.

The defendant himself took an impression. She was informed by telephone that her denture had been lost.

The defendant attempted to force a denture that was not hers and was too large into her mouth. It was too large, hurt her, and caused her gums to bleed.

The defendant, having lost her denture, said he would make one for her free of charge. That one did not fit and Mrs. Price requested her money back. She was refused her money because she would not sign a statement releasing the defendant from liability.

Carol E. Gorman, a former employee of Dr. Haley, testified that Mrs. Price never got her dentures and that: “Dr. Haley took another lower denture of somebody else who didn’t know who it was and stuck it in her mouth and said it was hers.”

Defendant denied he lost the denture of the patient, nor did he offer her a substitute denture. Winona Hall, an employee of defendant, and a defense witness, testified on cross-examination that defendant lost Mrs. Price’s denture and attempted to offer her a replacement.

The testimony before the board substantiates that there was some credible, reliable, probative and substantial evidence in the record to support the findings in Charge No. 7. Again the trier of fact saw and heard the witnesses firsthand and chose to believe the patients. Certainly the act of attempting to substitute another patient’s dentures for correctly fitting dentures could form the basis for the board’s belief that such conduct “is grossly immoral tending to deceive the public and disqualify him to practice with safety to the public.” In any event, the trial court cannot substitute its judgment for that of the dental board on matters peculiarly within the professional judgment of the licensing board. The court found no error in the trial court’s judgment that the dental board’s actions were not against the manifest weight of the evidence.

The third assignment of error was rejected.

W Issue 4: The last question to be decided was whether the court erred in finding reliable, probative and substantial evidence to support the dental board’s order that defendant Issued or caused to be Issued numerous advertisements of a character tending to deceive or mislead the public.

The chief investigator for the Ohio State Dental Board, Norman McClurg, testified that he clipped out of various newspapers advertisements of Tipp City Dental Center and Family Dental Center operated by defendant which were in violation of the state dental act. McClurg also testified he received some advertisements from dentists who had seen the advertisements and sent them to him.

The advertisements contained numerous violations of dental board regulations on advertising, to wit:

(a) the omission of the names of any associate or employed licensed dentist from any advertising;

(b) advertising a price for dental service, i.e., dentures for $125.00, without mention of the fact that more expensive dentures are also sold by the dentist;

(c) using the term “specialist” without being so licensed; and

(d) use of the term “Family Dental Center” or “Tipp City Denture Center.”

These advertisements appeared in local newspapers in the Dayton and Springfield, Ohio areas from October 1979 through December 1979.

The board submitted as an exhibit a letter dated September 20, 1979 to appellant from Arthur C. Huston, Jr., D.D.S., Secretary of the Dental Board, warning him of certain violations of laws and rules regulating advertising. The letter stated:

“Ted A. Haley, D.D.S.
“1810 Limestone
“Springfield, Ohio 45505

“Dear Mr. Haley:

“The Ohio State Dental Board executive office was recently informed that you have been advertising over radio station WBLY. Whenever we learn of dentists advertising, whether it be by radio, TV, newspaper or other medium, we investigate the nature of the advertisement to ascertain whether or not it complies with Dental Board laws and rules. Therefore, a representative of our executive office, Mr. N.J. McClurg, contacted WBLY and obtained copies of your advertising scripts.

“In researching these scripts we find several areas in which you are in direct violation of the laws and rules regulating advertising. Some of the phrases being used in violation of the laws and rules are: Specialist in Dental Surgery; Specialist in Family Dental Care and Gold Work; No need to go to see an Oral Surgeon; They’re approved by the American Dental Association; Full Orthodontic Service; and, Family Dental Center.

“The above phrases are considered to be deceptive and misleading to the public, and are therefore in violation of The Ohio Dental Act. “I have enclosed a copy of the Ohio State Dental Board rules on advertising, since the amended rules do not appear in your copy of the Dental Laws and Rules.

“We are directing you to ‘Cease and Desist’ immediately, from your present use of phrases and wording in your advertisements which are considered deceptive and misleading, and are requesting that all future advertisements be brought into compliance with the laws and rules. If, subsequent to this date, you fail to comply, the board may then find it necessary to take further administrative action.

“Should you have any questions concerning this matter, you may contact the executive office of the State Dental Board at your convenience.

“Sincerely,

“/s/ Arthur C. Huston, Jr., D.D.S.

“Arthur C. Huston, Jr. D.D.S.
“Secretary”

States may regulate advertising by professionals that is false, deceptive or misleading and there may be reasonable restrictions on time, place, and manner of such advertising. While the board is free to regulate false, deceptive, and misleading advertising by dental professionals, this court did not see how the use of the terms “Family Dental Center” or “Denture Center” is deceptive.

The record before the board however does contain some reliable, probative, and substantial evidence that defendant was responsible for numerous advertisements which omitted names of licensed dentists. These regulations are certainly reasonable in that they permit the board to properly monitor improper advertising. In addition, there was some probative, reliable, and substantial evidence that defendant was responsible for deceptive advertising concerning the price of dentures. There were numerous advertisements under defendant’s name that contained a price for dentures, and made no mention that defendant regularly sold dentures of a more expensive nature.

In short, there was some reliable, probative, and substantial evidence adduced in support of the board’s finding in Charge No. 10 that this court did not disturb said judgment.

Citation

Haley v. Ohio State Dental Board (7 Ohio App.3d 1, 453 N.E.2d 1262) March 24, 1982.

Learning Objective

12

Gross Misconduct

Conduct Resulting in Suspension of License

The finding of the Minnesota Board of Dentistry that the dentist demonstrated a course of dishonest behavior, charging for services not rendered, performing unnecessary services, engaging in sexually inappropriate touching of patients, perpetuating fraud upon patients and third-party payers, and displaying threatening behavior towards his colleagues and others supported an honest and strong suspicion that the physician had a mental emotional, or other disability adversely affecting his ability to perform as a dentist.

Issues

1. Did the board comply with statutory requirements when suspending Schultz?

2. Did the conduct, as stated in the findings, warrant discipline?

Facts

Roger Schultz had been licensed to practice dentistry in Minnesota since 1967. The Board of Dentistry initiated these proceedings to determine whether his license should be revoked, suspended, limited, modified or conditioned because he violated certain state statutes. A 12-day hearing was held before an administrative law judge who found that although a number of the charges were not proved, Schultz violated the statute and rule in 16 separate instances. He recommended that the board take disciplinary action. He specifically noted that he did not believe Schultz in most instances where the testimony was in conflict.

The board indefinitely suspended Schultz’s license to practice dentistry. It further ordered that Schultz could petition for reinstatement but no sooner than April 8, 1986. Under the board’s order, Schultz has the burden of proving that his petition should be granted. At a minimum, he must receive a psychiatric evaluation within 30 days of his suspension, comply with a treatment plan if one is recommended, be evaluated by a psychiatrist 60 days immediately preceding his petition, successfully complete courses in dental ethics and oral diagnosis, make a report about his intervening activities, and write a paper about the application of dental ethics to his new dental practice.

Schultz seeks review of the suspension.

Analysis

The statute provides that the board may suspend a dentist if any physical, mental, emotional, or other disability adversely affects his or her ability. First, one of the board’s conclusions of law states that:

Respondent has demonstrated over the years a course of dishonest behavior, charging for services not rendered, performing unnecessary services, engaging in sexually inappropriate touching of patients, perpetuating fraud upon patients and third party payers, displaying threatening behavior towards his colleagues and others, and either unwillingness or inability to engage in minimal acceptable documentation required for safe practice. The board concludes that such behavior evidences amental, emotional, or other disability adversely affecting his ability to perform dental services.

The board may suspend a license upon any of the following grounds:

1. Fraud or deception in connection with the practice of dentistry;
2. Conduct unbecoming a person licensed to practice dentistry or conduct contrary to the best interest of the public, as such conduct is defined by the rules of the board;
3. Any physical, mental, emotional, or other disability which adversely affects a dentist’s ability to perform;
4. Employing, assisting, or enabling in any manner an unlicensed person to practice dentistry.

The board concluded that Schultz violated the statute in 20 instances. Its conclusions were specific and based upon specific findings.

Schultz also contends that there is no evidence that there is probable cause to believe that he has any mental, emotional or other disability, which adversely affects his ability to perform as a dentist. Under Minnesota law, the board is mandated to “direct the dentist to submit to a mental or physical examination or a chemical dependency assessment” if it has probable cause to believe that the dentist has a condition described in the statutes.

The general burden of proof for administrative hearings is preponderance of the evidence, unless the substantive law provides a different burden or standard. Schultz challenges the violations found by the board. In some cases he contends that the findings are not supported by substantial evidence and in others he contends that his conduct does not warrant discipline.

 

1. Schultz’s hygienist took x-rays of B.K. and informed her that she had a number of cavities, and that one required urgent treatment, and that her wisdom teeth should be taken out. The board concluded that one who reviews x-rays, determines the presence of cavities, informs the patient, and recommends urgent treatment is diagnosing and recommending treatment. Schultz was found to have violated the statute relating to employing, assisting, or enabling in any manner an unlicensed person to practice dentistry.

 

2. The board described eleven instances of erroneous and inadequate recordkeeping with respect to both diagnosis and treatment. It concluded Schultz grossly deviated from the minimal standards required of a professional in maintaining adequate records. Schultz admits the instances but argues that they have been taken out of context and blown out of proportion. We can find no basis for this claim. The board is uniquely suited to make the determination whether the instances rise to the level of gross incompetence in the practice of dentistry.

 

3. Schultz provided services to a Vietnamese family sponsored by a church. The board found that as a medical provider Schultz agreed to accept Medicaid reimbursement as full payment for covered services but he repeatedly billed the recipient family and their church as well as Medicaid. Both the patient and the church paid for part of the services. The board concluded Schultz violated the law by engaging in personal conduct which brings discredit to the profession of dentistry. Schultz argues that his conduct was nothing more than an honest effort to collect the fee for which he contracted.

 

4. Schultz’s hygienist donated her services to the Vietnamese family. Schultz submitted bills to medical assistance for the services performed by the hygienist. Medical assistance paid for the services. Schultz argues that the conduct does not amount to a violation of any rule or law. Under the law, the board may suspend a license for “deception in connection with the practice of dentistry”. The findings support the conclusion of deception in connection with the practice of dentistry.

 

5. D.D., in the process of getting a divorce, asked Schultz to complete needed dental work because it was covered by her husband’s insurance. Because Schultz recommended such extensive work, D.D. consulted another dentist and did not return to Schultz. Schultz had performed some work for D.D. Schultz admits billing D.D. both for work which was done and for work which had never been done. The board concluded Schultz violated the law because of inadequate documentation and treatment and for charging for services not rendered. The board’s conclusion is supported by Schultz’s admission.

 

6. Schultz performed extensive dental work for R.J. and J.J. The board found that prior to treatment Schultz agreed to take payments of $25 to $50 per month and not to charge interest. Later Schultz began charging a service fee and shortly thereafter turned the J.’s account over to a collection agency. The board found that Schultz engaged in personal conduct which brings discredit to the profession of dentistry. The board’s findings are supported by substantial evidence. The rule does not require a repeated pattern of conduct.

 

7. Schultz told R.W. that she had seven cavities. Because she had had few dental problems in the past, she saw another dentist who determined that she had no cavities. Schultz testified that his x-rays of R.W. were unusable and based upon the x-rays he was unable to identify any cavities or needed dental work. The board’s findings are supported by substantial evidence supporting a conclusion that there was “deception in connection with the practice of dentistry.”

 

8. Schultz charged N.O. for a MOD buccal-lingual filling and for a pulp cap for tooth 21, whereas x-rays revealed only a MOD alloy filling and no evidence of a pulp cap. The board’s findings are based upon record evidence including testimony of another dentist that there was a MOD alloy filling and no pulp cap.

 

9. Schultz billed N.O. for a mesial-lingual filling on tooth 22. The board found that there is no mesial-lingual filling on tooth 22. The board’s findings are supported by testimony of another dentist that a mesial-lingual filling does not appear on later x-rays and does not show in N.O.’s mouth. The board concluded that Schultz billed for a service not performed in violation of the law.

 

10. Schultz removed teeth 29 and 30 from N.O.’s mouth. He charged $55 for root tip extraction and $15 for abscess removal for each tooth. He also removed tooth 31 and charged $70. The total bill was $210. Another dentist testified that he would charge $35 to $40 for the same service because there was no bone holding the teeth. He testified that his fees were within the median range of those in the dental community. The board concluded that Schultz violated the law by charging an unconscionable fee. This finding is supported by record evidence.

 

11. Schultz removed teeth 25 and 26 from N.O. Schultz charged $25 for extraction and $15 for an abscess removal for each tooth for a total of $80. Another dentist testified that the teeth were so loose it was a “matter of just picking them out of there.” He said the normal fee would be $25 total and there is no separate charge for abscess removal because a dentist always cleans up the extraction site.

The board found that the abscess removal is part of an extraction, it should not be billed separately unless there is strong documentation to justify it, and Schultz was vague and uncertain about the meaning of his own records.

Schultz argued that the board’s findings do not support the conclusion that his fees were unconscionable or excessive. The board concluded that Schultz was either grossly incompetent or that he charged an unconscionable fee or both. Again the board is uniquely suited to make the determination of whether Schultz’s conduct rises to the level of gross incompetence. It did not abuse its discretion in concluding the fees were unconscionable.

12. Schultz performed oral surgery on H.T., a Vietnamese refugee. At the request of H.T.’s sponsoring church, Schultz billed the Department of Public Welfare for root tip removal and abscess removal for teeth 19 and 30. The board found that an x-ray taken before surgery showed that there were no root tips present for either tooth 19 or tooth 30. Schultz conceded that there was no root tip present on tooth 30 and that he billed for its removal and for abscess removal.

The board concluded that he violated the law by charging for services not rendered.We are unpersuaded by Schultz’s arguments that the entries related to tooth 30 were due to a charting error by an assistant. The record and his own admission support the conclusion that he charged for services not rendered.

13. The administrative law judge found that after surgery on H.T., Schultz billed the Department of Public Welfare for an antrum repair with a bone graft in the area of the upper left bicuspid, an antrum repair with bone graft in the area of the upper right cuspid, and an alveolectomy and gingiplasty on all four quadrants.

The board found that the antrum repair with bone graft could not have been performed on the upper right side because the bicuspids were not removed. It found no need for an alveolectomy in the lower right area of H.T.’s mouth and that one hour and five minutes of surgery was insufficient time to perform all the services billed.

14. Schultz removed tooth 30 from P.T. and billed the Department of Public Welfare $25 for surgical root recovery and $370 for additional procedures in the area.

Schultz had no recollection or record related to the procedures. Schultz wrote to the Department of Public Welfare and indicated that he placed three stainless steel sutures in P.T.’s mouth, but at the hearing he could not recall why or when they were put in. The board found that placement of stainless steel sutures is uncommon and absent documentation could find no reason they should be used. It also found that Schultz removed tooth 2 without reason; he billed for a distal lingual amalgam on tooth 6, but there was no filling in the tooth; he billed for work on tooth 31 which was not performed; and he billed for work on tooth 18 which was not performed.

Schultz argues that the board ignored the procedures actually performed and its findings are unrelated to the charge. The performance of some procedures is no defense to billing for those not performed. With regard to patient P.T., the board charged Schultz with “attempting to inflate the bill with unnecessary work and extra charges”. This notice is sufficient

15. At the request of a church, Schultz provided services for N.T., a Vietnamese refugee. The church instructed Schultz to perform only work that was absolutely necessary because the family had no money and medical assistance would not pay for a permanent crown. Schultz placed a temporary crown on the tooth. It fell off several times because of swollen gum tIssue. Each time Schultz replaced it, he charged for palliative care as well as recementing. The charges totalled $240. The board found that Schultz had a choice of either restoring the tooth or extracting it and that his treatment fell below acceptable dental standards in violation of Minnesota law. The determination made by the board is one that it is uniquely suited to make. We find no abuse of discretion.

     

16. Schultz was charged with billing additional fees for abscess removal when the fee for this procedure is customarily included in an extraction. The board found two patients, in addition to N.O., were so charged and concluded that Schultz either made an unconscionable separate charge or deviated from minimally accepted standards for documentation or both. Although the board neglected to make a finding to support this conclusion, the record contains ample evidence to support it.

     

17. Workmen used a jackhammer while remodeling the dental office below Schultz’s. Schultz expressed his displeasure to the dentist and his staff with four letter words and threatening body language. They were intimidated and frightened. Schultz also threatened the dentist by phone at 10:30 P.M.

Another dentist stated by affidavit that Schultz swore at one of his employees, causing him concern for his family’s safety. A pharmacist testified that Schultz had threatened him with doubled up fists.

The board concluded that this conduct was conduct unbecoming a person licensed to practice dentistry. Schultz contends the conduct would not discredit the profession and was an isolated incident not warranting discipline. Again we find that the board is uniquely able to determine whether Schultz’s personal conduct brings discredit to the profession. We find no abuse of discretion.

18. After having dental work performed by Schultz, R.J. returned because of head and neck pains. Schultz explained that drainage was going down her neck and the side of her chest and was evacuating through her groin. While making this explanation, Schultz ran his hand down the side of her breast and onto her leg and groin area. The board found the touching was irrelevant to any professional service and R.J.’s failure to make a complaint was not a defense.

Schultz argues that his conduct was not contemplated by rule and statute and there was “nothing more here than a dentist explaining to a patient the way and manner that her lymph node system worked.” We disagree. The board’s finding that the touching was irrelevant to any professional service supports the conclusion that his personal conduct discredited the profession of dentistry and that he was making suggestive, lewd, lascivious, or improper advances to a patient.

19. K.M. was hospitalized to have her wisdom teeth taken out. The board found that on one post-extraction visit at the hospital, Schultz examined K.M.’s breast and explained he was checking for swollen glands. The board found Schultz’s touching of K.M.’s breast was unrelated to any professional service and concluded he violated the law.

Schultz complains that the finding ignores the hospital records which explain the examination, ignores the fact that the incident happened several years ago, ignores his denial, and fails to recognize that K.M. is a known user of street drugs.

There is substantial evidence of record to support the board’s finding and its conclusion. There is no statute of limitations in the statutes governing the dental profession.

The board complied with statutory requirements when it suspended Schultz. The evidence supports the board’s findings and, with two exceptions, its findings support its conclusions.

Citation

Matter of Schultz (375 N.W. 2d 509) Oct. 15, 1985

Learning Objectives

1. List at least 4 grounds upon which the board may suspend a dentist’s license to practice.
2. Discuss in detail the conduct unbecoming of a person licensed to practice dentistry.
3. Indicate specific conduct considered to bring discredit to the dental profession.

13

Case of Mistaken Cavity

Differing Professional Opinion or Deceit and

Dishonesty in Dentistry? One Dentist Finds 11

Cavities Where Two Others Find None

 

Missouri Dental Board suspended a dentist’s dentistry license on the basis that the dentist had obtained or attempted to obtain a fee by deception or misrepresentation, had shown incompetency, misconduct and dishonesty in the practice of dentistry, violated provisions relating to the practice of dentistry and violated professional trust imposed upon him by members of his profession. The court held that: (1) Missouri Dental Board’s disciplinary action against the dentist was supported by testimony of a patient and two other dentists, and (2) misconduct existed where the dentist diagnosed 11 cavities in a patient when two other dentists diagnosed no cavities.

Issue

What constitutes fraud?

Facts

Defendant James Hill appeals the Missouri Dental Board’s finding which suspended Hill’s dentistry license for 90 days and placed him on probation for three years. Hill argues the order is against the weight of evidence and contrary to the law.

Kelly Collins, a prior patient of Hill’s, came to Hill in 1984 for a routine dental examination and cleaning. During the examination, Hill cleaned, polished and checked Collins’ teeth while calling out numbers to a dental assistant who then made marks upon a dental chart. Hill did not x-ray Collins’ teeth. After completing the examination, Hill told Collins he had eleven teeth with cavities and multiple cavities in some of the teeth. Collins was upset with this diagnosis especially since Collins had not had a cavity in four years.

After leaving Hill’s office, Collins drove to the office of another dentist, Dr. McNutt, to get a second opinion. Collins told McNutt of the diagnosis made by Hill. McNutt examined Collins’ teeth and concluded Collins had no “carious lesions” which McNutt translated to mean cavities. Collins visited McNutt again several months later for another check-up. McNutt again found no cavities and no need for further treatment. A month later, Dr. Thomas Elliott examined Collins at the request of an investigator for the Dental Board. Elliott did not find any visible signs of decay or anything indicating Collins needed treatment. Hill testified before the board and denied telling Collins he had eleven cavities. The testimony of Hill’s receptionist, Nancy Kieffer, corroborated Hill’s testimony.

After considering this evidence, the Dental Board found Hill had advised Collins that eleven teeth had cavities whereas two other dentists advised Collins that no cavities were present. The board concluded Hill had obtained or attempted to obtain a fee by deception or misrepresentation, had shown incompetency, misconduct and dishonesty in the practice of dentistry, violated the provisions of the state code relating to the practice of dentistry and violated the professional trust imposed upon him by members of his profession. The board placed Hill on probation for three years and suspended his dentistry license for 90 days.

Analysis

There was substantial evidence to support the Board’s disciplinary action against Hill. The testimony of Collins, McNutt and Elliott support the Board’s finding that Hill made the eleven-cavity diagnosis. Although the testimony of Hill and Kieffer supports a contrary conclusion, this court was bound by the agency’s findings when the evidence would warrant either of two opposing conclusions. Hill’s first point, that the board’s decision was against the overwhelming weight of evidence, was denied.

Hill’s second point is that the board incorrectly applied the law when it concluded Hill’s conduct warranted discipline. Hill argues his eleven-cavity diagnosis, contradicted by two other dentists, does not evince professional misconduct. Hill believes the opposing diagnoses merely show a difference of professional opinion. McNutt and Elliott’s failure to specifically state Hill acted improperly is also fatal to the Board’s case, according to Hill. These arguments are without merit. Diagnosing eleven cavities in a patient when two other dentists diagnose no cavities seems to this court to be clear misconduct. Moreover, McNutt’s and Elliott’s failure to recite that Hill was incompetent is irrelevant given the damning import of the radically different diagnoses. Hill’s second point was denied.

Conclusion

A finding by the dental board that the dentist had obtained or attempted to obtain a fee by deception or misrepresentation, had shown incompetency, misconduct and dishonesty in the practice of dentistry, violated provisions relating to the practice of dentistry and violated professional trust imposed upon him by members of his profession was supported by the testimony of the patient that the dentist told the patient that he had 11 teeth with cavities and by the testimony of two other dentists that the patient did not have any cavities, even though the testimony of the dentist and that of his receptionist supported contrary conclusion.

This court also found that professional misconduct existed where the dentist diagnosed 11 cavities in a patient but two other dentists diagnosed no cavities, even though the two other dentists failed to specifically state that the dentist had acted improperly.

Citation

Hill v. Missouri Dental Board (726 S.W.2d 370) Jan. 20, 1987.

14

High Cost of Drugs

Cocaine Habit Costs the Dentist His License

to Practice Even Though Patients Are Not Affected

Dentist appeals from an order of the Pennsylvania State Dental Council and Examining Board revoking his license to practice. The court held that it was within the authority of the Board to revoke the license of a dentist who wrote Quaalude prescriptions for fictitious patients to finance his cocaine habit.

Facts

On January 30, 1979, Giacco pleaded guilty in the United States District Court to two record-keeping violations of the Comprehensive Drug Abuse Prevention and Control Act of 1970. The violations stemmed from Giacco’s practice of writing “quaalude” prescriptions for fictitious patients and then trading the Quaaludes to finance his cocaine habit. Giacco also traded Demerol, Tuinal and Dexedrine to finance his $1800.00 a week habit.

After a board hearing, Giacco’s license was revoked in accordance with the Dental Law, which provides for suspension or revocation of a license where the board finds that a licensee “has been guilty of a crime or misdemeanor involving moral turpitude....” Giacco does not contest the board’s finding that he was convicted of a crime involving moral turpitude. However, he contends that the board abused its discretion by revoking his license considering that his conduct did not affect the health care of his patients.

This court disagreed.

Analysis

Courts have consistently held that fraud in the practice of a health care profession is not limited to conduct which directly affects the care of patients but encompasses “all aspects of professional conduct.” Giacco did commit fraud by exploiting his professional position to obtain quaaludes, and this fraud was seriously compounded by trading the quaaludes for cocaine. We are painfully mindful of the horrendous consequences flowing to Dr. Giacco from the severity of the board’s penalty decision, but, as a watchdog of the dental profession, the Board was well within its authority in revoking Giacco’s license.

Conclusion

Fraud in the practice of health care profession is not limited to conduct which directly affects care of patients but encompasses all aspects of professional conduct.

The State Dental Council and Examining Board acted within its authority in revoking the license of a dentist who wrote quaalude prescriptions for fictitious patients to finance his cocaine habit.

Citation

Giacco v. Commonwealth of Pennsylvania, State Dental Council and Examining Board (60 Pa.Cmwlth. 408, 431 A.2d 1147) July 8, 1981.

15

More or Less Disclosure

Kentucky Would Permit a General Practitioner

To Perform Orthodontic Procedures,

But Would Not Let Him Tell the Public

A general practicing dentist brought action against Kentucky Board of Dentistry to challenge constitutionality of advertising prohibitions. The court held that the ban against dentist’s advertising was unconstitutional.

Facts

Stanley N. Parker is a dentist, licensed to practice general dentistry in the Commonwealth of Kentucky. Under Kentucky law, a dentist can choose to be licensed as a general practitioner or as a specialist in any of the seven recognized branches of dentistry, one of which is orthodontia. To become a specialist, a dentist must acquire a specialty license from the Kentucky Board of Dentistry, the state agency responsible for licensing and regulating the practice of dentistry. Once a specialty license is acquired for any of the areas of specialty recognized by the board, a dentist is required to limit his or her practice to the area of licensed specialization. If a specialty license is acquired, the dentist may announce to the general public that he “specializes” or is a “specialist” in that particular branch of dentistry.

In contrast, general practitioners may perform services in any or all of these branches of dentistry. Although a general practitioner is not prohibited from performing dental services in the areas of specialization, he is prohibited by statute from holding himself out to the public as a specialist, or as being “especially qualified,” in a particular branch of dentistry. The statute specifically prohibits “inserting the name of the specialty, or using other phrases customarily used by qualified specialists that would imply to the public that he is so qualified....” If a dentist is found to have held himself out to the public as being “especially qualified” in one of the areas of dentistry for which he has not obtained a specialty license, the board is empowered to revoke, suspend or refuse to renew his license for having committed “unprofessional conduct.”

As a general practicing dentist, therefore, Parker is permitted under Kentucky law to perform services in any of the recognized branches of dentistry. Parker does perform orthodontic procedures; in fact, he has over 200 hours in continuing education in that field, and orthodontia comprises approximately fifty percent of his practice. However, he is nevertheless prohibited from holding himself out to the public as being especially qualified in orthodontia.

In June 1985, Parker placed an advertisement in the Ashland, Kentucky Yellow Pages under the heading “Dentists.” The advertisement was headed by the phrase “COMPLETE DENTAL CARE,” and was followed by a listing of services such as “Hidden Partials & Bridges,” “Orthodontics ... with Clear & Metal Brackets,” and “Orthodontics without Braces....” The advertisement also specified that Parker was a member of the American Dental Association, the American Orthodontic Society and the American Association of Functional Orthodontists.

After this advertisement appeared in the Yellow Pages, the board instituted disciplinary proceedings against Parker, charging that Parker had committed unprofessional conduct. Specifically, the board asserted that by using the words “orthodontics,” “braces,” “brackets” and similar terms in his advertisement, Parker had violated the code of ethics by holding himself out to the public as especially qualified in the specialty of orthodontia. He was also charged with failure to comply with an order to cease and desist this advertising.

On February 7, 1986, Parker received notice from the board that the hearing on the charges was scheduled for March 14, 1986. Before the hearing could be held, the dentist filed suit to stop the proceedings. The following is the result of that case.

Analysis

The Supreme Court has firmly established that “commercial speech” –speech which proposes a commercial transaction – enjoys the protections of the First Amendment. This does not mean, of course, that commercial speech is completely shielded from state regulation. To the contrary, as with other forms of speech, a state is permitted to enact reasonable time, place and manner restrictions, and, advertising which is false, misleading or deceptive, or which proposes an illegal transaction, is not protected by the First Amendment from state regulation. The Court also stated that advertising which was potentially misleading, particularly with respect to the rendering of professional services such as law and medicine, could possibly be subject to some form of regulation.

If a state regulates speech which is potentially misleading, the Supreme Court has stated that, because of the First Amendment protections at stake, “the preferred remedy is more disclosure, rather than less.” To prefer more disclosure over an outright ban on particular forms of advertising not only protects the advertiser’s right to communicate, but also protects the general public’s interest in receiving information. Accordingly, to regulate commercial speech which is not misleading or which is only potentially misleading, a state must articulate a substantial interest, and the regulation must be narrowly tailored to meet that interest.

In this case, the state seeks to prevent dentists from using particular terminology unless they are licensed as a specialist in the branch of dentistry associated with such terminology. It is argued that such words as “orthodontics,” “brackets,” and “braces” are either inherently or potentially misleading in that the general public will believe that such a dentist is a “specialist” in the area of orthodontics. This court found that such terms are not inherently misleading. Such terms are not false, but actually describe procedures which a general practicing dentist is permitted to perform under state law. If a state permits a dentist to perform orthodontic procedures, we do not believe a state can justify an outright ban on the use of particular terms relating to orthodontics on the theory that such terms inherently mislead the public. To the contrary, by suppressing such speech, the public will possibly be misled into believing that only orthodontists can perform orthodontic procedures. Since this information is truthful and relates to a lawful activity, it is entitled to First Amendment protection.

Further, we believe that even assuming this information could be classified as potentially misleading, the state’s outright prohibition on the use of these terms cannot be justified. The States may not place an absolute prohibition on certain types of potentially misleading information, e.g., a listing of areas of practice, if the information also may be presented in a way that is not deceptive.

It is evident, as noted above, that a term such as “orthodontics” is not in and of itself deceptive; rather, it conveys information regarding dental procedures which either a general practicing dentist or a dentist specializing in orthodontia may perform. It is equally evident that these terms and the information they convey can be presented in a way which does not mislead the public into believing that a general practicing dentist is a dentist with an orthodontia specialty license. A disclaimer to such an effect would adequately address the state’s concern. Further, plaintiff’s advertisement in the instant case is illustrative of how additional information can serve to inform the public that a dentist is a general practitioner. By including the phrase “COMPLETE DENTAL CARE,” and by listing this advertisement under the heading “Dentists” and not “Dentists-Orthodontists,” plaintiff is informing the public that he is a general practitioner who provides orthodontic services as part of his general practice.

This does not imply that a state does not have a substantial interest in enabling the public to distinguish between general practitioners and specialists or in ensuring the professional conduct of dentists. Such interests in this context, however, can be furthered by requiring more disclosure; an outright ban on the use of specific, nonmisleading terms is simply not narrowly tailored to meet the state’s concern. Although a state has the power to regulate in the field of dentistry and has an interest in protecting the public, articulating a legitimate state interest does not end the inquiry – these interests must be furthered within the confines of, and are limited by, the First Amendment. In this case, the state has unconstitutionally restricted commercial speech in furthering its interests.

To the extent that these regulations prevent general practicing dentists from “inserting the name of the specialty” into an advertisement, we find the statute unconstitutional under the First and Fourteenth Amendments.

Keys

First Amendment does not protect advertising that is false, misleading, or deceptive or that proposes illegal transaction.

State attempting to regulate commercial speech that is not misleading or that is only potentially misleading must articulate substantial interest, and regulation must be narrowly tailored to meet that interest.

General practicing dentist’s use of terms, “orthodontics,” “brackets,” and “braces,” in advertisement was not inherently misleading and was protected by First Amendment, even though the dentist was not a licensed specialist in orthodontics, where Kentucky permitted general practicing dentists to perform orthodontics.

Kentucky’s outright ban against general practicing dentist’s use of terms, “orthodontics,” “brackets,” and “braces,” in advertising was not narrowly tailored to meet Kentucky’s concern in enabling public to distinguish between general practitioner and specialist or ensuring professional conduct of dentists and, therefore, would violate First Amendment, even if the terms were potentially misleading when they were not used by a specialist, where additional information in advertisement could inform the public that dentist was not a specialist.

Citation

Parker v. Commonwealth of Kentucky, Board of Dentistry (818 F.2d 504) May 5, 1987.

16

Bait and Switch

Allowing Assistants to Engage in Practice of

Dentistry Costs Dentist His License;

Work Orders on Yellow “Stickems”

This case arises out of the March 24, 1986 ruling of the Louisiana State Board of Dentistry finding Dr. William D. Allen guilty of twenty-three (23) counts of violating the Dental Practice Act, relative to employees engaged in the unauthorized practice of dentistry with Dr. Allen’s knowledge and consent, plus four (4) additional counts, relative to false and deceptive advertisements and failure to have established and written work orders. Dr. Allen’s license to practice dentistry was suspended for ten (10) years and he was placed on probation for ten (10) years thereafter. In addition, Dr. Allen was ordered by the Board to pay $25,500.00 in fines and $61,478.19 in hearing costs.

Facts

Dr. Allen contends that Brenda Gremillion, a dental assistant, testified that although she “did a wax try-in for Jeff Chamberlain, she did not testify that she placed it in his mouth”. A wax try-in necessitates that it be placed in the patient’s mouth to determine the proper occlusion. Only the dentist is licensed to make such a determination. While Dr. Allen hypothesizes that it is possible that the patient placed the try-in in his own mouth, the record does not substantiate such a finding. Chamberlain testified that he returned several days later to receive his partial denture. He stated that Dr. Allen did indeed place the partial in his mouth but that when he complained that it was too tight, Dr. Allen left the operatory instructing Gremillion to show him how to take the denture in and out of his mouth. When she was unable to remove the partial, she summoned Dr. Allen who pried it out. He then gave it to Gremillion who “filed them” and placed the denture back into Chamberlain’s mouth. Dr. Allen never returned to check the patient.

Dental assistant Gremillion testified that she delivered dentures to Charlie Mae Sims. This testimony was corroborated by Sims. In response to the question, “Who gave you the dentures?”, Sims responded, “One of his assistants, I believe.” Immediately following this testimony, after being shown a picture of Gremillion, the witness identified Gremillion as the assistant who delivered the dentures. In addition, Gremillion testified that she performed a wax try- in on Sims on July 8, 1985. Her testimony was corroborated by the lab slip which was signed “Dr. W.D. Allen–Brenda.” Dr. Allen always signed, W.D. Allen, D.D.S.

Gremillion testified that she delivered dentures to Mary Veazy on July 9, 1985. This testimony was corroborated by Veazy’s testimony, as well as a note in Veazy’s patient record that on that date she requested to see Dr. Allen to discuss a $75.00 delivery charge. This note suggests and serves to corroborate Gremillion’s testimony that Dr. Allen did not see Veazy on July 9, 1985.

Gremillion testified that on July 9, 1985, in addition to delivering dentures to Veazy, she delivered dentures to Frank Wells and repaired a flange for Gloria Jones without Dr. Allen being present. Gremillion’s testimony was corroborated by Veazy’s testimony that no one but Gremillion and Terry Marino were present on July 9, 1985 and she was specifically told that Dr. Allen was not in the office.

Furthur allegations involve work performed by Brenda Gremillion in the mouths of Ida Phillips, Annice Booth, Willie Vaughn, Mildred Harris, John Gates, Meita Gustefferson and Lori Ishman. Gremillion testified that she inserted Phillips’ upper denture in the patient’s mouth; repaired Booth’s denture and then seated it in the patient’s mouth; made, delivered and seated the dentures of Willie Vaughn; performed adjustments and repairs to the dentures of Mildred Harris in the patient’s mouth; delivered and seated the dentures of John Gates, Meita Gustefferson and Lori Ishman.

Of these seven allegations, three are not supported by or corroborated by evidence other than Gremillion’s testimony. No patient chart was found on Annice Booth and no one other than Gremillion testified that she performed dental work on Booth.

Willie Vaughn was only able to remember that Gremillion was present in the room the day he received his dentures. He could not remember if Dr. Allen was present or who delivered the dentures to him. Gremillion also testified that she delivered dentures into the mouth of Lori Ishman on July 24, 1985. However, there is no clear
and convincing evidence on Ishman’s chart to support Gremillion’s testimony. We therefore reverse the board’s findings on these three specifications.

The remaining four specifications are corroborated by other evidence. The patient charts of Phillips, Harris, Gates and Gustefferson all show entries by Gremillion, which corroborate her testimony.  Patricia Gill, mother of Tuesday Barrileaux, testified that Dee Chapman, a dental assistant, performed a bite rim on her daughter and an equilibration. When asked whether that work was done in her daughter’s mouth, she stated, “Right—on the teeth.” Gill’s testimony as to the work performed by Chapman is as follows:

On February 19, 1985, Chapman performed the first bite rim on Barrileaux and ground the denture (equilibration). On February 21, 1985, Chapman again ground the denture and again placed them back into Barrileaux’s mouth. When Gill requested to see Dr. Allen, Chapman informed her that he was not going to see her. Chapman took the dentures into the lab and performed a realignment for which she attempted to charge an additional $130.00. On February 22, 1985, Barrileaux returned to the office to have another impression taken so that another set of teeth could be made. Once again Chapman ground the denture in an attempt to make it fit. Gill told her, “I’m not going to look at them like this. I am going to take her to another dentist.”

Once informed by another dentist that the denture would not hold up, Gill returned to Dr. Allen’s office and demanded another set of dentures be made. On February 28, 1985, Barrileaux again returned to have her bite checked. Chapman checked her bite. No checking was done by Dr. Allen. On March 1, 1985, Barrileaux was again checked by Chapman. On March 3, 1985, Chapman performed another check and took upper and lower impressions. On March 8, 1985, the lab technician placed the new dentures in Barrileaux’s mouth to check for fit. Chapman was present.

Dr. Allen was not present. One side of the denture was a little lower than the other.  The lab technician stated that he could take care of the problem. On August 9, 1985, Barrileaux returned to pick up the denture. Chapman placed the denture in the patient’s mouth. Dr. Allen was not present nor did he come in to check the fit.

The court affirmed this charge.

These specifications concern dental work performed by Barbara Reaux on Darlene Davis. Reaux testified that she placed an acrylic partial into the mouth of Davis and took a final upper impression on Davis with the acrylic partial still in place. She testified that all this work was done at the direction of Dr. Allen. Reaux’s testimony was corroborated by Davis’ testimony, which was essentially the same.

Sharon Forbes testified that she took wax try-ins, checked the occlusal bite of numerous patients, delivered, adjusted and repaired dentures, and delivered, adjusted and repaired partials. She further testified that she performed these procedures at Dr. Allen’s direction and with his knowledge and consent both in his presence and out of his presence.

Edith McClendon testified that she placed an open face gold lateral on the upper of Gladys Myers without receiving a signed script from Dr. Allen. McClendon testified that instead of receiving her laboratory instructions on signed work orders, she received them on yellow “stickems” attached to the patient’s chart in the handwriting of one of Dr. Allen’s assistants. The board’s refusal to give any weight to the signed work order shown to McClendon during the hearing was correct as it was dated two days after she left Dr. Allen’s employ.

The court affirmed this charge.

This charge involves misrepresentation or false promises made directly or indirectly to influence, persuade or induce dental patronage. Sharon Forbes testified that she handled telephone inquiries from consumers responding to Dr. Allen’s ads. The ads led them to believe a full set of dentures was $125.00 when, in fact, the price was $125.00 each for the upper and lower denture. In addition, the $250.00 price was for a set of economy dentures, which had no festooning or shaping. If the patient wanted a denture that looked natural, the price ranged as high as $450.00. Forbes testified that many patients complained about the ads being misleading. She brought this to Dr. Allen’s attention but he refused to change the ads. Forbes testified that the employees were instructed by Dr. Allen to sell the higher priced dentures because the cost price was the same as for the cheaper set. Many patients came in for the $250.00 set and were persuaded to purchase the $450.00 set. The prices fluctuated with production. If production dropped, the price dropped. The employees were admonished that their jobs depended on producing $3,000 per day. They were told by Dr. Allen that “If you can’t make $3,000 per day, I’ll find somebody that can.” They were instructed to do “whatever it takes” to make production.

The court affirmed this charge.

Conclusions

Citation

Allen v. Louisiana State Board of Dentistry (531 So.2d 787) Sept. 16, 1988

17

Failure to Monitor

Dentist Loses the Patient to Anesthesia,

Then Loses His License to Practice

Texas Board of Dental Examiners’ findings that a dentist’s anesthesia practices in respect to a patient who became comatose and later died violated statutes requiring diligence and lack of negligence were supported by expert testimony that the dentist failed to conduct adequate preliminary examination, testing, and history of patient, failed to provide adequate monitoring, failed to properly intubate air passageway, and failed to exercise proper CPR procedures. Board of Dental Examiners’ order revoking dentist’s license rather than invalidating his permit to administer anesthesia was not shown to be arbitrary and capricious even though censured conduct related only to the dentist’s anesthesia practices.

Issue

In a tragic case a patient became comatose during a dental procedure while under anesthesia and later died. The dental board revoked dentist’s license. The dentist contended that the board should only revoke his permit to administer anesthesia, not his license to practice dentistry.

Facts

On January 3, 1985, the defendant dentist anesthetized a patient while another dentist performed a dental restorative operation. An impression mold for the purpose of casting a tooth outline was placed in the patient’s mouth for a protracted period of time without the defendant’s knowledge. The defendant had departed the operating room to see another patient prior to the infixing of the mouth mold by the administering dentist. Upon his return, the defendant found the patient with a shallow pulse. The defendant’s dental assistant of thirteen years had remained in the room along with two other assistants, but the administering dentist was not present. The defendant discovered and removed the impression tray. He attempted to revive the patient. The patient remained comatose until his death on January 9, 1985.

The defendant was charged and censured for the following violations: (1) failing to use proper diligence in the conduct of his dental practice; (2) negligence in the performance of dental services which injured or damaged dental patients; and (3) dishonorable conduct, malpractice or gross incompetency in the practice of dentistry or dental hygiene. His dental license was duly revoked.

Analysis

The substantial evidence test is applicable to cases involving judicial review of decisions of the Board of Dental Examiners. The test is whether the evidence as a whole is such that reasonable minds could have reached the conclusion that the agency must have reached in order to justify its action. In determining whether there is substantial evidence, the reviewing court may not substitute its judgment for the board’s, but must consider only the record upon which the decision is based.

In summary, Texas law states that the reviewing court shall reverse a board’s decision if it is arbitrary, capricious, characterized by abuse of discretion or a clearly unwarranted exercise of discretion.

The state’s expert witness testified that the defendant failed to conduct an adequate preliminary medical examination, testing and history of the patient; that he failed to provide adequate monitoring equipment to support anesthesia and failed to monitor the patient by leaving the room; that he failed to properly intubate an air passageway; that he failed to exercise proper CPR procedures; and that these particulars were violative of the statutes requiring diligence and lack of negligence in the practicing of dentistry and below the standard of practice in the community. This testimony was unrebutted. The defense presented evidence of the defendant’s reputation for professional competence and honorableness.
The testimony disclosed that the monitoring of a patient’s airway is the responsibility of the dentist that is administering the anesthesia. The fact that the death would not have occurred but for the actions of the treating dentist in placing the impression tray in the patient’s mouth does not eliminate or obviate the reported obligation of the dispensor of anesthesia to properly accommodate and safeguard the patient’s airway and apply resuscitation procedures in an expert manner.

The State’s expert witness based his opinions on records furnished him that did not include a certain toxicology report. The witness stated he did not need the report to form his opinions. The defendant claims this to be another presumptive manifestation of an arbitrary and capricious holding. Exclusion of evidence may not be urged unless the proponent perfected an offer of proof or bill of exception. The members of the board were in a better position to determine the relevance and materiality of the report than a reviewing judge unendowed with evaluation evidence or expertise.

In a motion for rehearing, the defendant re-urges his point that the revocation of the defendant’s dental license because of substandard anesthesiological practices must illustrate an arbitrary and capricious act.

In this case, the permit to administer anesthesia was subordinate to the dental license. It was a medical specialty for which the dentist had qualified to practice. It is no more a violation of fair play to revoke the dental license in this instance than it would be to revoke a medical doctor’s license for improper practice of medicine within or without his specialty, or to revoke a lawyer’s license for improper practice within or without his board certified area.

Citation

Texas State Board of Dental Examiners v. Silagi (766 S.W.2d 280) Jan. 5, 1989.

18

Conditional Reinstatement

For Reinstatement of License,

Board May Require Dental Board Exam,

 Continuing Education, Plan For Practice

In a case determining conditions imposed for reinstatement of a license the court held that: (1) dentist’s activities after revocation of license could be considered; (2) solo practice or practice with only one professional associate could be required; (3) submission and approval of a plan for practice could be required; and (4) community service could not be required.

Issue

What are the powers of the state dental examining board while imposing conditions for reinstatement of a dentist’s license?

Can the board require the dentist to perform community service as a condition of reinstatement?

Facts

Defendant Arnold H. Flanzer challenges the propriety of conditions imposed by the California Board of Dental Examiners when Flanzer’s application for reinstatement of his license to practice dentistry was granted.
Flanzer’s license was revoked effective October 12, 1980, based on board findings of gross ignorance or inefficiency pursuant to the professional and business code. The factual basis for revocation of Flanzer’s license were 59 instances of alleged gross ignorance or inefficiency involving 12 patients, and included inadequacies with respect to fillings, crowns, bridge work, failures to provide treatment for dental decay, and unnecessary treatment. The violations occurred in 1975 and 1976. Flanzer was also accused of charging for procedures he did not perform, but he prevailed before the board on those allegations.

Flanzer’s first petition for reinstatement of his license was denied. His second petition for reinstatement was granted subject to eleven separate conditions.

Flanzer then filed this petition challenging the board’s jurisdiction to impose conditions on his reinstatement and specifically challenging the propriety of four of the conditions. On this appeal Flanzer contends there was insufficient evidence to support the imposition of conditions and he claims four of the conditions imposed were arbitrary because they “bear no relationship to the deficiencies for which defendant’s license was revoked.”

Analysis

Since Flanzer challenges the sufficiency of the evidence in support of the board’s imposition of conditions, we must determine the appropriate standard of review. An applicant for reinstatement of a revoked license is in the same position as a person seeking a license in the first place. Accordingly, the trial court and this court are limited to a determination of whether the board’s findings are supported by substantial evidence in light of the whole record.

The law provides in pertinent part:

“A person whose license has been revoked or suspended may petition the agency for reinstatement or reduction of penalty.... The agency shall give notice to the Attorney General of the filing of the petition and the Attorney General and the petitioner shall be afforded an opportunity to present either oral or written argument before the agency itself. The agency itself shall decide the petition and the decision shall include the reasons therefore, and any terms and conditions that the agency reasonably deems appropriate to impose as a condition of reinstatement....”

While there is no requirement that the agency make findings of fact in support of its determination, the board must state its reasons for either granting or denying reinstatement. Here the board’s findings of fact were a hybrid–part statement of facts and part statement of reasons in support of its decision.
The board’s findings were as follows:

1. Petitioner presented evidence that he had completed a remedial education course of approximately 60 hours at Loma Linda University. In addition, petitioner presented evidence that he had completed approximately 77 hours of continuing dental education.

    

2. In the board’s professional judgment, the above courses alone are not sufficient evidence of petitioner’s ability safely to practice dentistry in California.

    

3. The above courses do not provide adequate assurance that petitioner’s diagnostic skills meet the entry level standards of competency.

    

4. Petitioner admitted that his problems arose in part from inattention and from the speed with which he performed procedures. Petitioner has not presented sufficient evidence to assure the board that he will not return to this manner of practicing dentistry.

    

5. Limitations on petitioner’s practice are necessary so that there will not be a reoccurrence of petitioner’s former problems, which were derived from his manner of practice. To assure that there will be no pressure from others to complete procedures more speedily or otherwise to interfere with petitioner’s professional judgment regarding treatment plans.

    

6. Petitioner should be required to perform community services, once his competency has been established, to compensate for violating the public trust placed in him by the State of California.

Flanzer presented evidence as to the remedial instruction he had taken since revocation of his license. In addition, Flanzer told the board that the problems leading to revocation of his license were caused by his being rushed and working too fast. At the time of the original accusations (1975-1976) Flanzer was in practice with another dentist and operated eight operatories and sometimes utilized the services of additional part-time dentists. Flanzer told the board he would accept limitations on the number of associates and operatories involved in a new practice.

Flanzer also appears to argue that in considering an application for reinstatement the board should be confined to those matters involved in the original license revocation and should not be concerned with a licentiate’s subsequent business practices.

The court found that Flanzer misconceived his burden as well as the board’s duty on an application for reinstatement. It is important to bear in mind that in a proceeding for the restoration of a revoked license, the burden at all times rests on the petitioner to prove that he has rehabilitated himself, and not on the board to prove the contrary. He is than entitled to have his license restored. As an applicant for reinstatement, Flanzer is not in the position of an untried newcomer, but a fallen licentiate. Under the circumstances, it is not unreasonable for the board to be exacting in its requirements as to proof of reform. It goes without saying that the pertinent Issues in the inquiry are Flanzer’s activities since revocation of his license and his present qualifications, ability and learning.

To the extent the findings constitute a statement of reasons for reinstatement on conditions, all except finding number six are supported by the record and represent the professional and expert judgment of the board in carrying out its statutory authority to evaluate the question of competency for the purpose of licensure. There is no evidence, substantial or otherwise, to support finding number six, the finding that Flanzer should be required to perform community services.

We turn then to a discussion of the reasonableness of the challenged conditions of reinstatement, bearing in mind that the courts must accord considerable deference to the board in such matters. Condition number two requires Flanzer to take and pass the California State Dental Board examination. The board has specific statutory power to require as a condition of reinstatement that the licentiate obtain additional training, pass an examination upon completion of training, or do both. Flanzer has obtained additional training, and the board is well within its rights to ascertain if he has absorbed that training and can pass an examination to demonstrate his capabilities. In this manner, the board fulfills its responsibility to Flanzer’s patients assuring that he possesses the requisite knowledge and ability to practice dentistry in California. Demanding that he establish his competency in the time-honored manner of passing the California state dental examination is a burden placed on everyone who desires to practice as a dentist in this state. The board did not abuse its discretion in requiring this condition to Flanzer’s reinstatement.

Under condition number three, Flanzer is required to “engage in solo practice, or alternatively, to practice with not more than one professional associate.” While testifying before the board, Flanzer, in effect, solicited this condition. It was Flanzer’s position that his problems were caused by being rushed and working too fast. He agreed that a condition restricting his practice to a solo practice or practice with one other dentist might help him avoid a feeling of being rushed. Requiring him to practice alone or with only one other dentist is an additional safeguard designed to insure there is no recurrence of the problems, which resulted in the initial license revocation. Considering the number and types of violations committed by Flanzer and his own admissions concerning his difficulty in managing a large-scale practice, the board acted reasonably in imposing this condition. The board did not abuse its discretion.
Similarly, the court found no fault with the requirement that “within 30 days of resumption of actual practice, Flanzer shall have previously submitted in writing to the board for its approval, and shall have received approval, of his plan for practice. The plan shall include his proposed location, office size, proposed associate’s name and background, and such other matters as the board shall request of him in this regard.” The Attorney General does not address this condition in his brief, except to say that it is supported by findings of fact numbers four and five. But the code permits the board to limit the extent, scope, and type of practice of a licentiate. This restriction is specifically authorized by statute in order that the board can control the extent of a probationer’s practice and ensure it will not burgeon to the point where he would feel rushed or pressured, as Flanzer admittedly did in his former office where he had eight operatories. On its face this condition is not unreasonable.

The requirement that Flanzer perform community service as a condition of reinstatement presents a different question, however. The board relies upon the entire record and justifies the imposition of this condition on the “violation of public trust theory.” Community service is certainly appropriate in cases where the public trust is violated and the competency of a licentiate who practices a profession is not the question before the board.

The Business and Professions Code authorizes “the option of alternative community service in lieu of all or part of a period of suspension in cases other than violations relating to quality of care.” In another case a doctor was required to perform 20 hours of community service where the basis for discipline was income tax evasion. Here, Flanzer’s license was revoked for incompetence and inefficiency. Accordingly, the condition of community service may not be imposed here.

Keys

An applicant for reinstatement of a revoked license is in the same position as a person seeking license in the first place.

The Board of Dental Examiners must state reasons for granting or denying reinstatement of a license, although there is no requirement that the board make findings of fact.

A dentist’s activities after revocation of a license and his present qualifications, ability, and learning could be considered by the Board of Dental Examiners in deciding whether to reinstate the license; the board was not restricted to matters involved in the original license revocation.

Passage of state dental examination could be required as a condition of reinstatement of a license.

Solo practice, or practice with only one professional associate, could be required as a condition of reinstatement of a license of a dentist whose problems were caused by being rushed and working too fast, and who also agreed that requirement to practice with one other dentist could help him avoid the feeling of being rushed.

The Board of Dental Examiners could require, as a condition of reinstatement of license, that the dentist, within 30 days of resumption of practice, submit for approval and receive approval of a plan for practice. The plan should include the proposed location, office size, proposed associate’s name and background, and other matters requested by the board.

Community service is appropriate in cases where public trust is violated and competency of licentiate is not questioned before the Board of Dental Examiners.

Citation

Flanzer v. Board of Dental Examiners of California (220 Cal.App.3d 1392, 271 Cal.Rptr. 583) May 30, 1990.

19

Mercury Toxicity

Incompetence or Unskillfulness,

Fraud and Negligence

Dentist appealed New York Commissioner of Education’s revocation of his license to practice. The court held that: (1) the findings that the dentist had practiced his profession fraudulently, that the dentist had practiced beyond authorized scope of dentistry, that the dentist had practiced with gross negligence and gross incompetence on more than one occasion, and that the dentist had conducted excessive tests and unwarranted treatment were supported by evidence; (2) the finding that the dentist had exercised undue influence and exploitation over patient was not supported by evidence; and (3) the revocation penalty was appropriate.

Issue

What constitutes incompetence or unskillfulness?

Facts

Defendant, a practicing dentist, was charged by the Office of Professional Discipline (hereinafter OPD) in December 1986 with nine specifications of misconduct: (1) practicing the profession fraudulently, (2) practicing beyond the authorized scope of dentistry, (3) practicing with gross negligence, (4) gross incompetence, (5) negligence on more than one occasion, (6) incompetence on more than one occasion, (7) excessive tests, unwarranted treatment, (8) undue influence and exploitation, and (9) practicing beyond the scope of the profession. The charges were based on the defendant’s treatment of patient A over a period of several months and arose from the removal of patient A’s amalgam fillings.

Hearings were held before a Hearing Panel on six days between July 24, 1987 and June 3, 1988 at which OPD presented two witnesses; Lewis Antine, an OPD investigator, and Robert Baratz, a dentist, physician and doctor of philosophy. Defendant testified on his own behalf and offered the testimony of his expert witness, Murray Vimy. The testimony of the expert witnesses was at times conflicting on the Issue of the propriety of defendant’s treatment. Patient A did not testify. However, Antine testified concerning his interview of patient A and stated that patient A told him that she had been suffering from various ailments for years. She first heard about the defendant on television. Patient A visited the defendant, who, after listening to her complaints, used a “Jerome Mercury Vapor Analyzer” to test for mercury vapor in her mouth. Defendant also performed a saliva acidity test and measured the electrical current in patient A’s mouth. Defendant apparently told patient A that mercury in small amounts could be toxic. Over a period of time defendant removed all her amalgam fillings and replaced them with nonmercury-based fillings.

Shortly after the filling work was completed, patient A developed a burning sensation in her mouth. Defendant then reportedly advised her to drink a detoxifying agent to cleanse her system of the remaining mercury. The sensation continued and patient A went to see an allergist and eventually had all the fillings that had been replaced by defendant removed and refilled by another dentist.

Following the hearings, the Hearing Panel Issued a report recommending that defendant be found guilty of all the charges and that his license to practice be revoked. After reviewing the record, the Regents Review Committee heard oral arguments on behalf of the defendant and OPD and then recommended that the findings and conclusions of the Hearing Panel be accepted. The Regents Review Committee also recommended as a penalty that defendant’s license be suspended for two years on each specification, with the suspensions to run concurrently.

Plaintiff Board of Regents accepted the findings and conclusions as recommended by the Hearing Panel and the Regents Review Committee, but increased the penalty to a revocation of defendant’s license to practice dentistry as to each guilty specification. Plaintiff Commissioner of Education Issued an order reflecting the Board of Regents’ determination and this case followed.
Analysis

Initially, the court noted that the Issue does not, as defendant contends, turn on whether defendant’s views on the toxicity of amalgam fillings are correct. Rather, the Issue is whether the defendant’s treatment of patient A’s medical problems by removing her amalgam fillings without further investigation and medical evidence that the procedure was warranted constituted the acts of misconduct of which the defendant was found guilty.

Next, the court found that there was substantial evidence to support specification No. (1), the fraudulent practice of dentistry. Defendant correctly argues that proof of “the intentional misrepresentation or concealment of a known fact” is required to sustain this charge. However, that intent or knowledge may be inferred from the surrounding circumstances. Facts from which such intent can be inferred were proven. Defendant based his treatment on a test which the expert witness for OPD testified provided meaningless results, advised patient A of those results which he should have known were unreliable, represented to her that she “might” or “could” feel better after the removal of her fillings, and subjected patient A to a procedure which he was not qualified to determine was warranted without medical approval. Defendant’s rendering of the unwarranted treatment, which he knew or should have known was beyond the scope of the practice of dentistry under the circumstances, could properly be found to be the fraudulent practice of dentistry by the dental board.

There was also substantial evidence presented to sustain specification Nos. (2) and (9) alleging that the defendant practiced beyond the scope of the profession of dentistry in violation of the dental code. Baratz, OPD’s expert witness, testified that diagnosing mercury toxicity and/or mercury sensitivity, as the defendant did, was beyond the scope of the practice of dentistry and that it was improper for the defendant to remove patient A’s fillings after only conducting mercury vapor, saliva acidity and electrical current tests. Baratz also stated that in view of patient A’s numerous physical complaints, it was necessary to first consult with her physician, explore her symptoms further and, if it then was found necessary to remove her amalgam fillings, to do the procedure in a hospital. Vimy, defendant’s expert, who had been under the impression that patient A had been under the care of a physician at the time defendant treated her (when in fact she was under the care of a chiropractor), implied that it would be improper to remove amalgam fillings to treat a patient’s medical problems.

Likewise, substantial evidence was presented to sustain specification Nos. (3) and (4) charging defendant with practicing the profession with gross negligence and gross incompetence. In order to support a finding of gross negligence, the conduct must be “egregious.” The fact finder could conclude that the defendant’s removal and replacement of some 14 amalgam fillings was not only unwarranted treatment beyond the scope of the practice of dentistry, of which the defendant was or should have been aware, but was also egregious and conspicuously bad conduct, undertaken for the purpose of self-enrichment.

In view of the above, it is clear that specification Nos. (5) and (6), charging the defendant with practicing the profession with negligence and incompetence on more than one occasion, respectively, are also sustained. The fillings were removed and replaced during separate appointments on separate days over a period of time. Defendant additionally directed patient A to drink a detoxifying agent to cleanse her system of mercury after she complained of a burning sensation in her mouth sometime after her amalgam fillings had been removed and replaced. These could be found to be distinct acts of negligence.

Based on the previously stated testimony of Baratz, the findings of guilt as to specification No. (7) (excessive tests/unwarranted treatment) are also supported by substantial evidence. Specification No. (8), however, charging undue influence, was not supported by substantial evidence to sustain the finding of guilt. The evidence presented relating to this charge did not rise to the level of undue influence. An annulment of specification No. (8) is therefore required. However, the penalty imposed should not be changed as the defendant’s license to practice was revoked as to each specification upon which he was found guilty.

Conclusion

Of the 9 items charged, only 8 was overturned. Since the court also found the punishment reasonable, the dentist’s license to practice was revoked for each of the 8 counts.

Keys

Proof of intentional misrepresentation or concealment of known fact is required to sustain charge of fraudulent practice of dentistry; however, that intent or knowledge may be inferred from surrounding circumstances.

The finding that the dentist had engaged in fraudulent practice of dentistry was supported by the testimony of an expert witness that the dentist based his treatment, which consisted of removing the patient’s amalgam fillings, on mercury vapor test which provided meaningless results, that the dentist had advised the patient of those test results even though the dentist should have known results were unreliable, and that the dentist subjected the patient to a procedure which he was not qualified to perform, and by evidence that the dentist represented to the patient that she “might” or “could” feel better after removal of her fillings.

The finding that the dentist had practiced beyond the scope of his profession in removing the patient’s amalgam fillings without obtaining prior medical approval was supported by expert testimony that diagnosing mercury toxicity and/or sensitivity was beyond the scope of dentistry, that it was improper for the dentist to remove patient’s fillings after only conducting mercury vapor, saliva acidity, and electrical current tests, that in view of the patient’s numerous physical complaints it was necessary to first consult with the patient’s physician and explore her symptoms, and that, had removal of patient’s fillings been deemed necessary, the procedure should have been done in a
hospital.

The finding that the dentist had practiced the profession of dentistry with gross negligence and gross incompetence was supported by evidence that the dentist removed and replaced the patient’s fourteen amalgam fillings based upon a diagnosis of mercury toxicity and/or mercury sensitivity which the dentist was not qualified to make, that the diagnosis was based upon tests which the dentist should have known were unreliable, and that the dentist undertook this extensive course of treatment without obtaining prior medical approval.

In order to support a finding of gross negligence, conduct must be egregious.

The finding that the dentist had practiced his profession with negligence and incompetence on more than one occasion was supported by evidence that the dentist, without prior medical approval and after conducting a test which he should have known was unreliable, replaced the patient’s 14 amalgam fillings during separate appointments on separate days over period of time, and that, after the patient complained of burning sensation in her mouth after removal and replacement of her fillings, the dentist directed her to drink detoxifying agent to cleanse her system of mercury.

The dentist’s removal of patient’s amalgam fillings without obtaining prior medical approval, and the dentist’s instructions to the patient to drink detoxifying agent to cleanse her system of mercury when the patient complained of burning sensation in her mouth after her fillings had been removed and replaced, could be found to be distinct acts of negligence.

Citation

Berger v. Board of Regents of the State of New York (178 A.D.2d 748, 577 N.Y.S.2d 500) Dec. 12, 1991.

20

Need to Define

Dentist Obtains Malpractice Insurance By

Misrepresentation, But Escapes Penalty

Because Board Made No Such Rule

In this case, the Supreme Court of Oregon defined and limited the power of the Board of Dental Examiners to discipline the licensees. The Supreme Court held that: (1) the statute authorizing the revocation of a dentist’s license on grounds of “unprofessional conduct” did not contravene any provision of State or Federal Constitution, and (2) conduct of the dentist in making intentional misrepresentations to his malpractice insurer did not constitute a legal ground on which to revoke his license since the board had made no rule to proscribe such a conduct.

Issue

Can a board discipline a dentist under “unprofessional conduct” statute without defining the conduct that is unprofessional?

Facts

Defendant, a dentist licensed both in Oregon and in California and maintaining offices in both states, sought review of an order of the State Board of Dental Examiners, which revoked his Oregon license on the ground of “unprofessional conduct.”

The conduct, which the board found unprofessional under the statute, was that the defendant obtained malpractice insurance coverage for other dentists employed by him in his California practice by misrepresenting that they were employed in Oregon. Briefly stated, the board found that the defendant had requested this coverage from his insurance brokers on his Grants Pass, Oregon letterhead. Thereafter he had his California employees submit application forms on which a line asking for their office address had been cancelled out or left blank, purposely leaving the impression that the applicants were employed in Grants Pass. Upon this misrepresentation the insurance carrier, to its damage, provided liability coverage which it otherwise would not have provided. The Issue, in sum, is whether the board may revoke a dentist’s license under an unparticularized rubric of “unprofessional conduct” upon an administrative finding that he practiced a fraud on an insurance company.

Defendant objects that before revoking a license for unprofessional conduct other than the kinds specified in the statute itself the board must first adopt rules indicating the forbidden conduct, because the phrase “unprofessional conduct” alone is too vague a standard to be applied directly from case to case.

Analysis

The defendant contends that the legislature did not mean “unprofessional conduct” to extend to a dentist’s dealings with an insurance company or at least not without prior rulemaking.

The statute, along with “unprofessional conduct,” lists “gross ignorance, incompetence or inefficiency” as grounds for disciplinary action.

“In determining what constitutes ‘gross ignorance, incompetence or inefficiency in his profession,’ the board may take into account all relevant factors and practices, including but not limited to the practices generally and currently followed and accepted by persons licensed to practice dentistry in this state, the current teachings at accredited dental schools, relevant technical reports published in recognized dental journals and the desirability of reasonable experimentation in the furtherance of the dental arts.”

However, the law makes no such reference for determining what constitutes “unprofessional conduct.” While current standards of scientific knowledge and of safe and effective technique in a profession or craft may be determinable from such sources, disputed ethical standards often are more an issue of policy and values than of the state of the art.

The “unprofessional conduct” explicitly encompasses the following:

“(1) The board may discipline as provided in this section any person licensed to practice dentistry in this state for any of the following causes:

“(a) Conviction of any offense for which the court could impose a punishment of imprisonment in a state or federal penal institution.

“(b) Renting or loaning to any person his license or diploma to be used as a license or diploma of such person.

“(c) Unprofessional conduct, or for gross ignorance, incompetence or inefficiency in his profession.

“(2) Any violation of unprofessional conduct as used in this chapter includes but is not limited to the following:

“(a) Employing what are known as ‘cappers’ or ‘steerers’ to obtain business.

“(b) Obtaining any fee by fraud or misrepresentation.

“(c) Willfully betraying confidences involved in the patient-dentist relationship.

“(d) Employing, aiding, abetting or permitting any unlicensed personnel to practice dentistry.

“(e) Making use of any advertising statements of a character tending to deceive or mislead the public, or which are untruthful.

“(f) Advertising professional superiority or the performance of professional services in a superior manner.

“(g) Advertising prices for professional services, unless in accord with rules developed by the board.

“(h) Advertising by means of large display, glaring light signs, or advertising containing as a part thereof the representation of a tooth, teeth, bridgework or any portion of the human head.

“(i) Employing or making use of advertising solicitors or publicity press agents.

“(j) Advertising any free dental work or free examination.

“(k) Advertising to guarantee any dental service, or to perform any dental operation painlessly.

“(l) Advertising which makes reference to any anesthetic, drug, formula, material, medicine, method or system to be used in treatment.

“(m) Advertising extractions, artificial teeth or dentures.

“(n) Habitual or excessive use of intoxicants or a controlled substance.

“(o) Obtaining or attempting to obtain a narcotic drug or a dangerous drug, as previously defined in this section, in any manner proscribed by the rules of the board.

“(p) Prescribing or dispensing drugs outside the scope of the practice of dentistry.

“(q) Using, in any advertisement, a portrait cut, photograph or reproduced likeness which is more than five years old of the dentist so advertising.”

Doubts are sometimes expressed whether rules can encompass the variety of acts that should be recognized as “unprofessional,” or “unethical,” or “unbecoming,” or otherwise improper.

For instance, as this case illustrates, an important question is what relationships are covered by the term “unprofessional conduct” and thus within the range of professional discipline. It might be agreed that the term covers conduct in the course of rendering the professional service on the one hand, and on the other that it excludes the licensee’s purely private affairs unrelated to any relevant professional qualification or performance. But between these two poles, there may be questions about how far “unprofessional conduct” extends to financial arrangements or to mixing professional with other relationships. There may be disagreement whether the term should extend beyond conduct toward the patient or other recipient of the regulated service so as to cover relationships with employees or suppliers, with other professionals or perhaps with the regulating agency itself. As stated above, in many licensing statutes the legislature does not itself provide explicit or implicit answers to these and similar questions; it delegates this task, within the limits of each statute’s objectives, to the licensing agencies. The answers might well differ in one occupational setting from another. They may change within the same occupation over time. Thus, when the statute itself offers no further definition, the legislative delegation to the agency calls for such questions to be resolved in principle by rules rather than being confronted and disputed for the first time in charging a particular respondent directly under a conclusory term such as “unprofessional conduct.”

Petitioner contends that his dealings with the insurance company in this case could not in any event be brought within the range of the legislative standard “unprofessional conduct” because it is too unlike the other types of proscribed “unprofessional conduct.” The argument is that the listed practices all relate directly to the dentist-patient relationship or to the dentist’s physical or mental qualifications. If this were so, or if the statute authorized only interpretive rulemaking under the term “unprofessional conduct,” the conclusion might follow. But we do not find all the specific proscriptions to be so limited. As stated above, more of them dealt with advertising than with any other subject, and while advertising is indeed addressed to potential patients, the restrictions do not seem designed exclusively to protect their interests. Nor is it evident that the rules on obtaining drugs are limited to the dentist-patient relationship. We do not mean that “unprofessional conduct” necessarily extends further. But we are not prepared to hold that the board’s power to make rules for ethical conduct in the practice of the profession is narrowly limited to the dentist’s relationship with a patient. Besides, it would not be farfetched to recognize a concern of patients in a dentist’s fraudulent application for malpractice insurance, which, in case of need, might not be available without litigation.

In summary, we have concluded that the statute does not contravene any provision of the state or federal constitution. We have also concluded that when the section was amended to provide that “unprofessional conduct” was no longer limited to the expressly proscribed acts, the legislature did not mean that it had its own conception of what constitutes “unprofessional conduct” which the board was to divine in the form of interpretation. Rather it authorized the board to expand the list of conduct deemed unprofessional for disciplinary purposes by rules, without the need to return for legislative amendments. A rule covering fraudulent business practices in the conduct of the professional practice would be within the reach of the statutory delegation, but the board made no such rule before proceeding against the petitioner. The question is whether the petitioner is now entitled to judicial relief.

We conclude that the petitioner is entitled to relief. His license has been revoked under a statutory standard of “unprofessional conduct,” which was broadened beyond its original list of specifications, which the statute meant the board to particularize by rules. Although his original attack was couched in constitutional terms, its target was the same lack of comprehensible and channeling criteria that the rules are meant to provide. No such rule having been made to proscribe the kind of conduct charged against the
petitioner, there was no legal ground on which to revoke his license. The board “erroneously interpreted a provision of law,” in believing that the standard could be applied ad hoc to facts not covered by a rule adopted pursuant to the statute. The error could not be cured on a remand. Thus the board’s order is reversed.

Conclusion

The court concluded that the defendant was entitled to relief. His license had been revoked under a statutory standard of “unprofessional conduct,” which was broadened beyond its original list of specifications, and which was not defined by the dental board’s rules. Since no rule had been made to proscribe the kind of conduct charged against the defendant, there was no legal ground on which to revoke his license.

Citation

Megdal v. Oregon State Board of Dental Examiners (288 Or. 293, 605 P.2d 273) Jan. 8, 1980.