The Interplay of Administrative
Dental License Discipline
And Dental Malpractice
PROFESSIONAL LIABILITY DEFENSE FEDERATION
2013 Annual Meeting
Chicago, Illinois
Presented by
William Manning, Esq.
Van De Poel, Levy & Allen, LLP
This Will Be Over In A Flash!
There Will Be A Test.
Don’t Fail.
Course Objectives
Understanding the Profession
The Regulatory Scheme
The Disaster Of Discipline
Overview Of Administrative Discipline Process
Punishment – “this won’t hurt much”
Insurance – manna from heaven
Maximizing Defense Of Malpractice Case To
Mitigate Or Avoid Disciplinary Risk
RBA101 For The Legal Practitioner
A Profession In Transition
“It is a critical moment for dentistry and a
time for the profession to define its destiny.
Given the significant environmental changes
on the horizon, this is a watershed moment
for the profession.”
American Dental Association, August 2013
The Onslaught Of Lawyers
ABA TASK FORCE ON THE FUTURE OF LEGAL EDUCATION:
44,258 new law graduates in 2010
78,900 applicants for 2012
High student debt
Few jobs = more solos
P.S. - oversupply of Dentists
“You’re Kidding!?”
Hungry lawyers + even hungrier clients in
difficult economic times mean no case is
too small.
Diastema
• dī'ə-stē'mə
• “An abnormal space between two adjacent
teeth in the same dental arch.” Mosby’s
Dental Dictionary 1998
Truth Is Stranger Than Fiction
Let’s Get Started
Dentistry: Dictionary
“The science and art of preventing,
diagnosing, and treating diseases,
injuries, and malformations of the teeth,
jaws, and mouth and of replacing lost or
absent teeth and associated structures.”
Mosby’s Dental Dictionary 1998
Dentistry: Statutory
“Dentistry is the diagnosis or treatment, by
surgery or other method, of diseases and
lesions and the correction of malpositions of
the human teeth, alveolar process, gums,
jaws, or associated structures; and such
diagnosis or treatment may include all
necessary related procedures as well as the
use of drugs, anesthetic agents, and
physical evaluation.”
California Bus. & Prof. Code §1625
D.D.S. or D.M.D. - What It Takes
Four Years of College
Four Years of Dental School
National Boards
Practical Exams
Residency
Specialization
Understanding The Profession
Practice 30 + years bent over with an
aching back while holding a 100,000RPM
diamond burr handpiece with patient
gagging and spitting in your face.
Then you get sued.
Or worse.
Or prison.
License Regulation
Overview Of License Regulation
Statutory/Regulatory
Common Law – all but 8 states
Overview Of License Regulation
“Any licentiate may have his license revoked
or suspended or be reprimanded or be
placed on probation …
…for unprofessional conduct, or
incompetence, or gross negligence, or
repeated acts of negligence … or for any
other cause … in this chapter.”
California Bus. & Prof. Code§ 1670
Overview of License Regulation
Statutory Authority
“Dental/Dentistry Practice Act”
“Health Occupations Revision Act” (D.C.)
“The Dental Law” (PA)
“Act 368” (MI)
Overview of License Regulation
Licensing Agencies
“Board of Dental Examiners”
“Dental Board”
“Dental Commission”
“Department of Financial and
Professional Regulation Division of
Professional Regulation”(IL)
Overview Of License Regulation
Department Of Consumer Affairs
Dental Board of California
8 practicing DDS
1 RDH
1 RDA
5 Public
Priority: Protection Of The Public
“Protection of the public shall be the
highest priority for the Dental Board …[if]
inconsistent with other interests … the
protection of the public shall be
paramount.”
California Bus. & Prof. Code §1601.2.
Priority: Protection Of The Public
“The purpose of disciplinary proceedings
… is not to punish the professional but is
rather to protect the public from further
wrongdoing.
In re Appeal of Schramm, 414 N.W.2d 31 S.D. (1987)
Stormy Weather
License Discipline:
What Is The Risk?
Unmitigated Disaster
No Such Thing As A “Little” Discipline
Reputational Loss
Emotional And Psychic Impact
A Different Standard: Professionals
Lawyers vs. Doctors
Nightmare In The Dental Chair
Nightmare in the Dental Chair
People v. Griswold
Board v. Griswold
Professionals: A Different Standard
“If there is one unique area of …law
where strict compliance with protocol
and military like discipline is required, it
is in the medical field. Human lives
depend on it…”
Ress v. Abbott Northwestern Hospital, Inc., 448 N.W.2d 519 (MN, 1989)
No Such Thing As
A “Little” Discipline
“Revocation of a dentist's license is the
ultimate penalty which can be applied, for
it terminates his ability to practice in a
specialized discipline to which he has
devoted years of preparation…”
Kundrat v. Commonwealth State Dental Council & Examining
Bd., 67 Pa. Commw. 341 (1982) [Dissenting Op.]
License Discipline: Financial Loss
Loss Of Privileges = Loss Of Business
PPO
HMO
Traditional Indemnity
Private Pay
License Discipline: Insurability
Loss of Top Coverage
High Risk Category
Lower Limits
More costly
No Discipline Coverage
License Discipline: Reputation
Obligation to truthfully admit discipline
Word of mouth
Yelp et. al.
Public Records Act
Internet access to Board website
Public while pending
Cf: confidential while pending?
License Discipline: Reputation
“Disciplinary proceedings against a licensed
dentist are confidential until the Board
officially rules against the dentist and
releases its findings and imposition of
discipline.”
La. State Bd. of Dentistry v. DDS, 18 So. 3d 792 (2009)
Guilty until proven innocent!
License Discipline: Disclosure
“Given the procedural posture in which this
case reaches us, we will assume, but need
not decide, that Dr. Mendel owed [patient] a
duty to disclose ‘multiple’ suspensions or
revocations; reprimands by ‘numerous’
dental review boards; or suspensions or
revocations in ‘numerous’ states.”
Ex Parte Mendel, 942 So. 2d 829 (Ala. 2006)
Sources Of
Administrative Investigations
Sources: Patient Complaints
Obligation To Investigate Complaint
Disgruntled Patients
Billing Disputes
Insurance Dilemmas
Plaintiff’s Attorneys
Sources: Third Party Reports
Public Agency
Other Professions
Colleagues
Disgruntled Employees
Peer Review Issues
805 Reports
Sources: Malpractice
Malpractice Settlements
By Insurer
By Uninsured Doctor
Malpractice Judgments
By Clerk of Court
Sources: Malpractice
“Notably, an inquiry from an insurance
representative launched the board's
investigation into his license status.”
Hagen v. Iowa Dental Bd., 2013 Iowa App. LEXIS 978
Sources: NPDB Reports/Inquiries
Purpose: "restrict the ability of incompetent
[health care professionals] to move from
State to State without disclosure or
discovery of the [professional's] previous
damaging or incompetent performance." 42
U.S.C. § 11101(2)
No Threshold
Insurer Report
Query: Future Public Accessibility
Reporting Limits By State
Bases Of Discipline
Bases of Discipline: Criminal
“Clearly, a defendant does not have to be
told of all the numerous possible collateral
consequences of a guilty plea in order for
that plea to be legally permissible, proper,
and binding.”
Caudill v. Ky. Bd. of Dentistry, 2006 Ky. App. Unpub. LEXIS 814
Bases of Discipline: Criminal
“Dr. Smith was convicted on a plea of
nolo contendere of two counts of assault
stemming from incidents in which he
improperly administered anesthesia,
allegedly leading to the death
of two patients.”
State v. Smith, 593 P.2d 625 AK (1979)
Bases of Discipline: Criminal
Nolo Contendere plea to felony, or of any
misdemeanor substantially related to the
qualifications, etc. is deemed to be a
conviction -- irrespective of later plea
withdrawal
California Bus. & Prof. Code § 1018.05.
Bases of Discipline: Criminal
“The sole reason for the Board’s decision
was Caudill’s criminal conviction of a crime
involving moral turpitude.”
Caudill v. Ky. Bd. of Dentistry, 2006 Ky. App. Unpub. LEXIS 814
Bases of Discipline: Criminal
Conviction Of Crime:
“substantially related to the
qualifications, functions, or duties”
“record of conviction …shall be
conclusive evidence”
Felony Conviction
California Bus. & Prof. Code § 493
Bases of Discipline: Criminal
“At the formal hearing on January 6, 1992,
McGrath reaffirmed his position, stipulating
that he had been found guilty of the
[Medicare] fraud charges but requesting
that, to avoid possible injustice in the event
of a subsequent acquittal, the SBOD defer
its adjudication on his license until final
judgment was entered in his criminal
appeal.”
McGrath v. State Bd. of Dentistry, 159 Pa. Commw. 159 (1993)
Bases of Discipline: Criminal
“Clearly excessive…
prescribing, furnishing, dispensing, or
administering.”
Misdemeanor
fine: $100 --$600
imprisonment: 60 -180 days
both
Bases of Discipline: Criminal
Aiding and Abetting
Sule v. Guam Bd. of Dental Examiners, 2008 Guam 20
Bases of Discipline: Criminal
A DDS and His Gun
Bases of Discipline: Addiction
“Prescription drugs follow alcohol as the
most commonly abused substances by
lawyers seeking help through state
support programs.”
ABA Commission on Lawyer Assistance Programs (2013)
Bases of Discipline: Addiction
Addiction Issues
“The Other Bar”
Diversion Programs
Reality Check
Require New License Application
Bases of Discipline: Addiction
“Dr. Brown had not been practicing since
March 1993, a little over two years
…substantial evidence existed indicating Dr.
Brown had not maintained his skills…”
Brown v. State Dep't of Health, Dental Quality Assur. Comm'n, 1997
Wash. App. LEXIS 1166
Bases of Discipline: Sexual
Misconduct With Patient
Lawyers
Judges
Healthcare professionals
Proscription:
“any act of sexual abuse, misconduct,
or relations”
“patient, client, or customer”
Exceptions
Bases of Discipline: Sexual
Misconduct With Patient
“The basis of the Board’s order was
…[Dentist] was guilty of unprofessional
conduct by making ‘lewd lascivious, and
improper advances to a patient.’ There
[were] two separate incidents involving
different patients. The Board may not make
eight separate offenses out of two incidents.
‘Lewd’ and ‘lascivious’ are synonymous, and
both may be considered ‘improper.’ We
remand …”
Jensen v. Board of Dental Examiners, 53 Ore. App. 50 (1981)
Bases of Discipline: Sexual
Misconduct With Patient
Board of Registration in Dentistry found “the
parties had been engaged in a mutually
enjoyable sexual relationship …” but
concluded that consent would not exonerate
the dentist. Magistrate recommended
revocation. Actual suspension.
Roe v. Federal Ins. Co., 412 Mass. 43 (1992)
Bases of Discipline:
Sister State Discipline
“Where, as here, charges of serious professional
misconduct have been brought before the
licensing board of a foreign jurisdiction, and the
professional is afforded the full opportunity to
challenge the truth of those allegations but has
chosen to waive that opportunity, and to resolve
the complaints by agreeing to discipline, we see no
need for the Massachusetts board to take on the
burden of conducting an out-of-State investigation,
and attempting to prove those allegations in order
to impose reciprocal discipline.”
Anusavice v. Bd. of Registration in Dentistry, 451 Mass. 786 (2008)
Bases of Discipline:
Continuing Education
“The first count alleged that Mostatab was
subject to disciplinary action…for
violating…regulations [re] reporting
continuing education credits….”
“The second count alleged that Mostatab
was subject to discipline …in that she made
a false or deceptive biennial renewal with
the Board.”
Mostatab v. State Bd. of Dentistry, 881 A.2d 1271 (Pa. Commw. Ct. 2005)
Bases of Discipline:
Deceptive Advertising
“[T]he advertisements were misleading
because of the possibility that a lay person
would conclude that "polydontics" was a
dental specialty and that Dr. Barnett
possessed some special expertise not held
by most general practitioners.
Barnett v. Maryland State Bd. of Dental Examiners, 293 Md. 361 (1982)
Bases of Discipline:
Clinical Allegations
Repeated Acts of Negligence
Gross Negligence
Gross Violation of SOC
Incompetence
Bases of Discipline:
Repeated Acts of Negligence
“Departure from standard of care.”
Repeated Acts of Negligence
= more than one
James v. Board of Dental Examiners (1985) 172 Cal. App. 3d 1096
Bases of Discipline:
Gross Negligence
“An extreme departure from the
accepted standards of care of
dental practitioners.”
James v. Board of Dental Examiners (1985) 172 Cal. App. 3d 1096
Bases of Discipline:
Incompetence
“Incompetence generally is defined as a
lack of knowledge or ability in the
discharging of professional obligations.”
James v. Board of Dental Examiners (1985) 172 Cal. App. 3d 1096
Repeated Acts of Negligence
Gross Negligence
Incompetence
Discipline:
Exceeding Scope Of Practice*
“But in performing the elective cosmetic
procedures, [Dentist] violated OCGA § 4311-17 by exceeding the statutory limits of the
scope of dentistry. Thus, we conclude that
[Dentist] committed negligence per se….”
Brown v. Belinfante, 252 Ga. App. 856 (2001)
*NB: statutory definition of practice.
Discipline:
Unprofessional Conduct
Discipline:
Unprofessional Conduct
Difficult and growing area
Statutory
CA: double letters
“The violation of any of the provisions
of this division.” California Bus. & Prof
Code §1680(n)
Frequently basis for criminal liability
Unprofessional Conduct Risk
Examples
The Smock
Kid And Dad
Lady DDS
Overview Of
Administrative Process
Overview Of
Administrative Process
Administrative Authority
Due process considerations
Emergency Revocation
Investigation Process
Accusation/Petition re Discipline
Discovery
Settlement
Pre-hearing conference
Overview Of Investigation
Who Investigates?
“Dear Doctor” letter
Failure to comply = discipline
Board Evaluation
AG Referral
That Visceral Feeling
“Baggage Claim”
http://av8.home.comcast.net
Emergency Revocation
Authority
Time limits
Not always a bad thing
Discipline Pleadings
“Petition”
“Accusation”
“OSC Alleging Violation”
First Appearance
Response To Accusation
Tight time limits!
Notice of Defense
Affirmative Defenses
Pleading Defenses
Affirmative Defenses: few
Amending Pro Per appearance
Waiver
Administrative Discovery
“Discovery” is an oxymoron
Limited or Highly Limited
Tight time limits
Depositions
Dismissal For Failure To Make
Pre-Trial Matters
Pre-hearing Conference
Settlement Conference
Settlement Terms & Conditions
Administrative Hearing
Who hears?
Administrative Law Judge
Administrative Magistrate
Hearing Officer/Examiner
Licensing Board
Peers
“Kangaroo Court”
“Mr. Manning’s medi-legal argument”
“Don’t bother me with the science”
Administrative Standards of Proof
Standards of Proof: real or illusory?
Statutory
Case Law
Administrative Standards of Proof
“The proper standard of proof in disciplinary
proceedings against a person holding a
professional license is clear and convincing
evidence.”
“The district court was within its discretion
when it ordered the members of the Board
disqualified from hearing the proceeding
against the appellee…”
Johnson v. Board Of Governors Of Registered Dentists Of Oklahoma, 1996
OK 41
Defenses:
Procedural/Substantive
Statutes Of Limitation
Due Process Considerations
Standard of Care
Fact And Opinion
Waiver Issues
Importance Of Local Law
Defenses: Statutes Of Limitation
CA - 3 years after discovery of act/omission
CA - 7years after the act or omission
Exceptions:
Fraud
Intentional concealment
Minors
Importance of local law
Defenses: Standard of Care
Primary mode of defense
Experts Critical
Board Consultant
Board hack
Defense experts must be better
Defenses: Expertise
“When the administrative body applies its
own expertise …to set the standard of care
and a determination whether a professional
violated it, the appellate courts, who are
lawyers by training, lack the expertise to
review findings of a board concerning
medical, dental or any multitude of
professions and occupations.”
In re Appeal of Schramm, 414 N.W.2d 31 S.D. (1987)
Defenses: Board Can Decide
“We can logically assume that the dentists
sitting on the Board which heard the case
are knowledgeable and experienced in the
field of dental medicine … As such, they are
permitted to draw on their expertise in ruling
on matters which come before them.”
Kundrat v. Commonwealth State Dental Council & Examining Bd., 67
Pa. Commw. 341 (1982)
Defenses: Board Can Decide
“Thus, we decline to impose a per se rule
that expert testimony is required to establish
the standard of care in disciplinary hearings
conducted by professional licensing boards.”
Watkins v. N.C. State Bd. of Dental Exam'rs, 358 N.C. 190 (2004)
Defenses: Fact And Opinion
Fact and opinion
Critical nature of the chart
Complete familiarity with entries
Electronic charts
Digital radiographs
Defenses: Causation
“My son is better off.”
Lack Of Injury/Damages
Defenses: Waiver Concerns
“Because McGrath did not raise his
procedural due process argument before the
SBOD, nor was he prevented from raising it
there, he has waived the issue on appeal.
Accordingly, we affirm the order of the
SBOD.”
McGrath v. State Bd. of Dentistry, 159 Pa. Commw. 159 (1993)
Due Process Considerations
“We agree that the term ‘appropriate
monitoring equipment’ is unconstitutionally
vague because it does not provide a
reasonable standard by which Dr. Watkins
was supposed to act. The term…is not
defined in the regulation and what is
‘appropriate’ is subject to many different
meanings.”
Watkins v. State Bd. of Dentistry, 740 A.2d 760 (Pa. Commw. Ct. 1999)
Due Process Considerations
“We are not convinced that the prohibition of
‘dishonorable conduct’ presents a realistic
danger that protected free speech
rights…will be chilled. Also, the potential …
is very small in relation to the statute’s
legitimate sweep in regulating professional
conduct of licensed dentists … whatever
overbreadth might exist should be cured
through case-by-case analysis …
Wettach v. Iowa Bd. of Dental Examiners, 524 N.W.2d 168 (1994)
Administrative Decision
Who decides?
Proposed Decision
Adopt or Non-Adopt
“Not a danger to the public.”
Administrative Deference
“District court erred concluding that [Board]
erred when it failed to defer to hearing
officer's determination that dentist's
conduct was not unprofessional and
recommendation that she not be
disciplined.”
N.M. Bd. of Dental Health Care v. Jaime, 2013-NMCA-040
Post-Hearing Relief
Jurisdiction/Timing Issues
Reconsideration
Stay
Post-Decision Relief
Finality of Decision
Trial Court
Venue Issues
Writ
Stay
Standard of Review
Post-Judgment Relief
Court of Appeal
Temporary Stay
Supersedeas
Standard of Review
Remand Protocol:
déjà vu all over again
Discipline aka Punishment
Discipline aka Punishment
“[Board] has convincingly demonstrated
through testimony and documentary
evidence that [Dentist] committed the acts
charged and has earned the revocation
sought.”
Board Closing Brief
Discipline aka Punishment
Not Supposed To Punish—But It Does
Early 13c., "penitential chastisement;
punishment," from Old French descepline
11c.) "discipline, physical punishment;
teaching; suffering; martyrdom…"
http://www.etymonline.com/index.php
Prior/Other Discipline
Levels Of Discipline
Revocation
Suspension
Probation
Public Reproval
Private Reproval
Adding Insult To Injury
Costs of Prosecution
Restitution to victim
Limited recovery to successful DDS
Adding Insult To Injury
Dentist's action to recover costs for
administrative proceedings under La. Rev.
Stat. Ann. § 49:965.1 "Reasonable
litigation expenses" means any expenses,
not exceeding seven thousand five
hundred dollars.”
Allen v. Louisiana State Bd. of Dentistry, 595 So. 2d 320 (1991)
Other Aspects Of Discipline
Supervised practice
Monitor
Limited scope of practice
Citations And Fines
Terms and Conditions
Numerous
Mandatory
Admission of fault
Judicial Review Of Discipline
“Manifest abuse of discretion.”
Recovery
Recovery
Avoidance
Damage Control – You Can Help!
Preparation
Letters
Recovery Proceedings
Petition To Terminate Probation
Petition To Restore License
The Crucial Importance
Of Insurance
Availability Of Coverage
Costs of legal defense
Expert costs
Increasing Use Of Sub-Limits
The Crucial Importance
Of Insurance
Need For Excess Policy
Examples
Handling The Civil Malpractice Case To
Maximize Disciplinary Defense
OPM
Expectation Of Discipline
Restrictions On Discovery In Discipline Case
Preparing Experts
Framing The Outcome In Advance
Post-trial Proceedings
Handling The Civil Malpractice Case To
Maximize Disciplinary Defense
Conflicts of Interest
ACO
Hospitalists
Kaiser
Liability Insurers
Ancillary Matters
805 Reports And Proceedings
Denial Of License
Surrender In Lieu
Restoration/Reinstatement
Proceedings To Terminate Discipline
RBA101 For The Legal Practitioner
RBA101 For The Legal Practitioner
“Risks, Benefits, And Alternatives”
Informed (Legal) Consent
CYA
Legal Malpractice Issues re RBA
RBA101 For The Legal Practitioner
Settlement Of Civil Malpractice Cases
Policy
Statutory
Hammer Clauses
Excess and Surplus Lines
RBA101 For The Legal Practitioner
Settling a dental malpractice case can
result in significant adverse
consequences for the dental licentiate.
A defense to and including trial and
appeal may be required to achieve a
settlement or judgment less than the
licensing agency reporting limits, to
protect the dentist from the devastation
of discipline, or prepare for it.
Course Summary
Course Summary
Dentistry And How It Is Regulated
The Disaster Of License Discipline
How Administrative Discipline Begins
Authority And Scope Of Discipline
Overview Of Administrative Discipline Process
Punishment
The Role Of Insurance
Maximizing Defense Of Malpractice Case To
Mitigate Disciplinary Issues
RBA101 For The Legal Practitioner
Q&A
I’m Outta Here
Thank You Very Much!