Arkansas State Medical Bd. v. Bolding

ARKANSAS STATE MEDICAL BOARD v. Scott L.
BOLDING, D.D.S., and Springdale Memorial
Hospital Association, Inc.

95-728                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered April 29, 1996


1.   Parties -- necessary parties -- Dental Board should have been
     joined as necessary party. -- The supreme court held that the
     Arkansas State Board of Dental Examiners should have been
     joined as a necessary party because it is the regulatory
     agency vested with the authority to decide what constitutes
     the practice of dentistry; the court's conclusion was
     consistent with its previous recognition that officials who
     are charged with enforcing a statute, rule, or order that is
     being challenged, or whose presence is needed to afford
     complete relief to the parties, are necessary parties.

2.   Judgment -- summary judgment -- trial court erred in granting
     summary judgment rather than ordering joinder of Dental Board.
     -- Where appellant argued that the Dental Board exceeded its
     authority in expanding the definition of dentistry beyond its
     statutory limits, the supreme court concluded that joinder of
     the Dental Board was necessary to afford complete relief to
     the existing parties under Ark. R. Civ. P. 19; it followed
     that, under the mandatory language of the rule, the trial
     court erred in granting summary judgment and effectively
     dismissing the case with prejudice rather than ordering
     joinder of the Dental Board.       

3.   Judgment -- summary judgment -- standard of review. -- In
     determining whether summary judgment was proper, the supreme
     court need only decide if the granting of summary judgment was
     appropriate based on whether the evidentiary items presented
     by the moving party in support of the motion left a material
     question of fact unanswered; the burden of sustaining a motion
     for summary judgment is always the responsibility of the
     moving party; all proof submitted must be viewed in a light
     most favorable to the party resisting the motion, and any
     doubts and inferences must be resolved against the moving
     party; summary judgment is proper when a claiming party fails
     to show that there is a genuine issue as to a material fact
     and when the moving party is entitled to summary judgment as
     a matter of law; once the moving party establishes a prima
     facie entitlement to summary judgment by affidavits or other
     supporting documents or depositions, the opposing party must
     meet proof with proof and demonstrate the existence of a
     material issue of fact.

4.   Administrative law & procedure -- agency interpretation of
     statutes -- afforded great deference although not binding. --
     Ordinarily, agency interpretations of statutes are afforded
     great deference, even though they are not binding; the
     interpretation given a statute by the agency charged with its
     execution is highly persuasive, and while it is not
     conclusive, it should not be overturned unless it is clearly
     wrong.

5.   Administrative law & procedure -- agency interpretation of
     statutes -- deference not afforded Dental Board's
     interpretation of statute defining practice of dentistry. --
     In light of the scant record before it, the supreme court did
     not afford any special deference to the Dental Board's letter
     to appellee hospital approving appellee dentist's requested
     procedures as falling within the practice of dentistry,
     especially where the statute defining the practice of
     dentistry had not previously been subjected to judicial
     scrutiny or time-tested agency interpretations.

6.   Judgment -- summary judgment -- doctors' affidavit and
     deposition presented mixed question of law and fact -- summary
     judgment precluded. -- Where appellant presented the affidavit
     of a plastic surgeon, who averred that the cosmetic surgeries
     being performed by appellee dentist constituted the practice
     of medicine and did not fall within the practice of dentistry,
     and also presented the deposition of a physician serving as
     appellant's chairman, who testified that appellant board had
     voted to seek an injunction against appellee dentist, having
     determined that he was engaged in the practice of medicine,
     the supreme court concluded that the affidavit and the
     deposition created a mixed question of law and fact,
     precluding summary judgment, and that the trial court erred in
     granting summary judgment in favor of appellees.


     Appeal from Washington Chancery Court; John Lineberger,
Chancellor; reversed and remanded.
     Cearley Law Firm, by: Robert M. Cearley, Jr., for appellant.
     Everett, Mars & Stills, by: Thomas A. Mars, for appellee Scott
L. Bolding, D.D.S.
     Cypert, Crouch, Clark & Harwell, by:  Charles L. Harwell, for
appellee Springdale Mem. Hosp. Ass'n, Inc.

     Bradley D. Jesson, Chief Justice.April 29, 1996   *ADVREP1*







ARKANSAS STATE MEDICAL BOARD,
                    APPELLANT,

V.

SCOTT L. BOLDING, D.D.S., and
SPRINGDALE MEMORIAL HOSPITAL
ASSOCIATION, INC.,
                    APPELLEES,





95-728


APPEAL FROM THE WASHINGTON
COUNTY CHANCERY COURT (E-94-
860)


HONORABLE JOHN LINEBERGER
CHANCERY JUDGE




REVERSED AND REMANDED.



                 CHIEF JUSTICE BRADLEY D. JESSON

     The appellant, Arkansas State Medical Board ("Medical Board")
brought suit against appellees Scott Bolding, D.D.S., a dentist,
and the Springdale Memorial Hospital Association, Inc.
("Hospital").  The Medical Board sought to enjoin Dr. Bolding from
engaging in the unlawful practice of medicine, and the Hospital
from aiding and abetting Dr. Bolding's unlawful practice of
medicine on its premises.  The trial court granted summary judgment
in favor of Dr. Bolding and the Hospital on the grounds that Dr.
Bolding was practicing dentistry under the authority granted to him
by the Arkansas State Board of Dental Examiners ("Dental Board").
Because the Dental Board had not been joined as a party defendant,
the trial court reasoned that it could not grant the relief
requested by the Medical Board without exposing Dr. Bolding to
inconsistent determinations by two different state agencies.  While
we agree that the Dental Board was a necessary party, we hold that
the trial court erred in granting summary judgment and reverse and
remand. 
     The facts as set out in the Medical Board's complaint are as
follows.  The Medical Board, established pursuant to Ark. Code Ann.
 17-95-301 (Repl. 1995), is the licensing and regulatory authority
for the practice of medicine within the State.  Pursuant to Ark.
Code Ann.  17-95-402 (Repl. 1995), the Medical Board may seek an
injunction in chancery court against any person who attempts to
practice medicine without a license.  The "practice of medicine" 
includes "[p]erforming any kind of surgical operation upon a human
being."  Ark. Code Ann.  17-95-202(2)(E) (Repl. 1995).  
     The Medical Board alleged that Dr. Bolding had been granted
privileges at the Hospital to perform medical procedures that he
was not licensed by the Medical Board to perform.  Particularly,
these procedures included blepharoplasties (eyelid surgeries),
rhytidectomies (facelifts), rhinoplasties (nose surgeries),
otoplasties (ear surgeries), scalp surgeries, and cleft lip
repairs.  According to the Medical Board, these procedures are
reconstructive plastic surgical procedures that require specialized
medical training and a medical license to perform.  The Medical
Board sought to enjoin Dr. Bolding from engaging in the unlawful
practice of medicine, claiming that his performance of these
procedures was detrimental to the health, safety, and welfare of
the people of the State of Arkansas.  The Medical Board likewise
sought to enjoin the Hospital from aiding and abetting Dr.
Bolding's unlawful practice of medicine.
     Dr. Bolding and the Hospital filed separate answers to the
Medical Board's complaint.  Though Dr. Bolding admitted to having
performed some of the procedures mentioned in the complaint, he
claimed that, according to the Dental Board, these procedures
constituted the "practice of dentistry," which is exempt under the
Medical Practices Act's licensing requirement under Ark. Code Ann.
 17-95-203(3)(A) (Repl. 1995).  Both Dr. Bolding and the Hospital
responded that the Dental Board was a party whose joinder was
required under Ark. R. Civ. P. 19.   
     Dr. Bolding and the Hospital filed separate motions for
summary judgment.  Attached to the Hospital's motion was the
affidavit of Anne Buss, the Hospital's medical staff coordinator,
who averred that she had previously sought and received an opinion
from the Dental Board to the effect that the privileges requested
by Dr. Bolding were within the American Dental Association's
approved definition of oral and maxillofacial surgery, a specialty
in which Dr. Bolding was "licensed" by the Dental Board.  In
response to the motion for summary judgment, the Medical Board
submitted the affidavit of Dr. James A. Beckman, a plastic surgeon,
who averred that the cosmetic surgeries being performed by Dr.
Bolding constituted the practice of medicine, and that
blepharoplasties and rhytidectomies did not fall within the
practice of dentistry.   
     Following a hearing on the motions, the trial court announced
from the bench that it was granting summary judgment in favor of
Dr. Bolding and the Hospital on the basis that the Dental Board was
a necessary party.  The trial court concluded that, since the
Dental Board had not been joined in the lawsuit, it could not grant
the relief requested by the Medical Board without exposing Dr.
Bolding and the Hospital to inconsistent determinations by two
different state agencies.  The Medical Board now appeals from the
trial court's order granting summary judgment.
     The Medical Board first argues that the trial court erred in
granting summary judgment and effectively dismissing the lawsuit
rather than joining the Dental Board as a party under Ark. R. Civ.
P. 19, governing joinder of persons needed for just adjudication. 
That rule provides, in pertinent part:
     (a) Persons to Be Joined If Feasible. A person who is
     subject to service of process shall be joined as a party
     in the action if (1) in his absence complete relief
     cannot be accorded among those already parties, or, (2)
     he claims an interest relating to the subject of the
     action and is so situated that the disposition of the
     action in his absence may (i) as a practical matter,
     impair or impede his ability to protect that interest,
     or, (ii) leave any of the persons already parties subject
     to a substantial risk of incurring double, multiple or
     otherwise inconsistent obligations by reason of his
     claimed interest. If he has not been joined, the court
     shall order that he be made a party. If he should join as
     a plaintiff, but refuses to do so, he may be made a
     defendant; or, in a proper case, an involuntary
     plaintiff. 
 
(Emphasis added).  Pursuant to this rule, we hold the Dental Board
should have been joined as a necessary party, as it is the
regulatory agency that is vested with the authority to decide what
constitutes the practice of dentistry.  Our conclusion is
consistent with our previous recognition that officials who are
charged with enforcing a statute, rule, or order that is being
challenged, or whose presence is needed to afford complete relief
to the parties, are necessary parties.  Pulaski County v. Jacuzzi
Brothers Div., 317 Ark. 10, 875 S.W.2d 496 (1994); citing 7 Wright,
Miller & Kane, Federal Practice and Procedure: Civil, 1617 (1986);
26 Fed. Proc., L.Ed., 59:116, 117; IBM Credit Corp. v. Pulaski
County, 316 Ark. 580, 873 S.W.2d 161 (1994).  
     In the present case, Dr. Bolding applied for and allegedly
received a "license" from the Dental Board to practice oral and
maxillofacial surgery.  While a copy of the "license" does not
appear in the record, an August 30, 1993, letter from the Dental
Board to the Hospital indicates that Dr. Bolding was so licensed on
July 6, 1993, and, according to the Board, was "well within the
scope of oral and maxillofacial surgery in applying for the
privileges he ha[d] requested" at the Hospital, and was allowed by
virtue of his training to perform the procedures at issue.  As the
Medical Board argues that the Dental Board exceeded its authority
in expanding the definition of dentistry beyond its statutory
limits, we conclude that joinder of the Dental Board was necessary
to afford complete relief to the existing parties under Rule 19. 
It follows that, under the mandatory language of the rule, see
Newbern, Ark. Civil Prac. and Proc. (2d ed. 1993),  5-3, the trial
court erred in granting summary judgment and effectively dismissing
the case with prejudice rather than ordering joinder of the Dental
Board.    The Medical Board further claims that summary judgment
was improper because the case presented both a question of law,
whether the Dental Board exceeded its authority by expanding the
definition of dentistry beyond its statutory limit, and a question
of fact, whether the procedures in question fall within this
statutory definition.    
     In determining whether summary judgment was proper, we look to
the following guideposts recently summarized in Renfro v. Adkins,
323 Ark. 288, 295-296, 914 S.W.2d 306, 309-310 (1996): 
          In these cases, we need only decide if the granting
     of summary judgment was appropriate based on whether the
     evidentiary items presented by the moving party in
     support of the motion left a material question of fact
     unanswered.  The burden of sustaining a motion for
     summary judgment is always the responsibility of the
     moving party.  All proof submitted must be viewed in a
     light most favorable to the party resisting the motion,
     and any doubts and inferences must be resolved against
     the moving party.  Our rule states, and we have
     acknowledged, that summary judgment is proper when a
     claiming party fails to show that there is a genuine
     issue as to a material fact and when the moving party is
     entitled to summary judgment as a matter of law.
          It is further well-settled that once the moving
     party establishes a prima facie entitlement to summary
     judgment by affidavits or other supporting documents or
     depositions, the opposing party must meet proof with
     proof and demonstrate the existence of a material issue
     of fact. 

(Citations omitted).       
     Dr. Bolding and the Hospital ask us to affirm the trial
court's decision in light of the Dental Board's letter opinion that
Dr. Boldings's requested procedures fall within the practice of
dentistry.  The "practice of dentistry" is defined in Ark. Code
Ann.  17-82-102(1)(A) (Repl. 1995), and includes: 
          (i) Examination, diagnosis, treatment, repair,
     prescription, and surgery of or for any disease,
     disorder, deficiency, deformity, condition, lesion,
     injury, or pain of the human oral cavity, teeth,
     gingivae, and soft tissues; and 
          (ii) The diagnosis, the surgical and adjunctive
     treatment of the diseases, injuries, and defects of the
     human jaws and associated structures.  

Ordinarily, agency interpretations of statutes are afforded great
deference, even though they are not binding. Ark. Dep't Human
Servs. v. Greene Acres Nurs. Homes, 296 Ark. 475, 757 S.W.2d 563
(1988); Arkansas Pub. Serv. Comm'n v. Allied Tel. Co., 274 Ark.
478, 625 S.W.2d 515 (1981).  We have further held that the
interpretation given a statute by the agency charged with its
execution is highly persuasive, and while it is not conclusive, it
should not be overturned unless it is clearly wrong. Pledger v.
Boyd, 304 Ark. 91, 799 S.W.2d 807 (1990); Arkansas Contractors
Licensing Bd. v. Butler Constr. Co., 295 Ark. 223, 748 S.W.2d 129
(1988)(emphasis added).  However, we hesitate to afford any special
deference to the Dental Board's letter to the Hospital approving
Dr. Bolding's requested procedures in light of the scant record
before us, especially when we consider the fact that our statute
defining the practice of dentistry has not been previously
subjected to judicial scrutiny or time-tested agency
interpretations.  See State Med. Soc. v. Bd. of Exam. in Podiatry,
546 A.2d 830 (Conn. 1988).  
     As mentioned above, Dr. Bolding's "license" to practice oral
and maxillofacial surgery is missing from the record.  The Dental
Board's letter merely indicates that it adheres to the definition
of oral and maxillofacial surgery adopted by the American Dental
Association: 
     The specialty of dentistry which includes the diagnosis,
     surgical and adjunctive treatment of diseases, injuries
     and defects involving both the functional and esthetic
     aspects of the hard and soft tissues of the oral and
     maxillofacial regions.
 
An explanation of the scope of Dr. Bolding's "license" is also
missing from the record.  The Medical Board maintains that the
practice of a specialty in dentistry is nothing more than a
recognition by the Dental Board that a person has met certain
certification and educational requirements so that he or she may
announce a specialty.  The Medical Board further asserts that there
is nothing in the Dental Practices Act that would prohibit a
general dentist from performing the procedures at issue in this
case.  With these matters in mind and in the absence of a fully
developed record, we decline to hold as a matter of law that the
"practice of dentistry" or the definition of "oral and
maxillofacial surgery" includes such procedures as scalp surgeries,
eyelid surgeries, and facelifts.  
     The Medical Board presented the affidavit of Dr. Beckman, a
plastic surgeon who averred that the cosmetic surgeries being
performed by Dr. Bolding constituted the practice of medicine and
that blepharoplasties and rhytidectomies did not fall within the
practice of dentistry.  Also presented was the deposition of Dr. W.
Ray Jouett, Chairman of the Medical Board, who testified that
following a meeting at which several plastic surgeons were present,
the Board voted to seek an injunction against Dr. Bolding, as it
determined he was engaged in the practice of medicine.  According
to Dr. Jouett, the factual question presented to the Board at the
time was not whether the procedures constituted dentistry, but
whether they constituted the practice of medicine.  We believe that
the affidavit of Dr. Beckman and the deposition of Dr. Jouett
created a mixed question of law and fact, precluding summary
judgment.  In evaluating the evidence presented under our standards
for reviewing summary judgments, we must conclude that the trial
court erred in granting summary judgment in favor of Dr. Bolding
and the Hospital.
     It is obvious there exists a disagreement between the Medical
Board and the Dental Board as to where the practice of dentistry
stops and the practice of medicine commences.  It is a significant
question and one which should only be addressed upon a fully
developed record with all necessary parties before the court.
     Reversed and remanded.