GREENE (EARLENE F.) VS. KENTUCKY BOARD OF DENTISTRY
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RENDERED: FEBRUARY 25, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-001533-MR
EARLENE F. GREENE
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 08-CI-002081
KENTUCKY BOARD OF DENTISTRY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER, MOORE, AND STUMBO, JUDGES.
KELLER, JUDGE: In December 2007, the Kentucky Board of Dentistry (the
Board) placed the license of Earlene F. Greene, D.M.D. (Greene) on probation for
five years and ordered her to take yearly continuing education courses in
recordkeeping and documentation. Greene sought review of the Board’s order and
a declaratory judgment regarding the constitutionality of KRS 13B.150 from the
Jefferson Circuit Court. The court found that the Board’s order was supported by
substantial evidence and that KRS 13B.150 is constitutional. Greene appeals from
the court’s opinion and argues before us that: there is not sufficient evidence of
substance in the record to support the Board’s finding that she is a chronic or
persistent alcoholic; there is not sufficient evidence of substance in the record to
support the Board’s finding that she failed to keep written dental and medical
history records sufficient to justify the course of treatment of her patient, Donna
Borton (Borton); and KRS 13B.150(2)(c) unconstitutionally deprived her of her
due process right to adequate relief on appeal.1 The Board argues to the contrary.
For the following reasons, we affirm.
FACTS
Greene has come before the Board two times for disciplinary
proceedings, once in 2006 and again in 2007. Only the 2007 matter is currently
before us on appeal; however, because the two proceedings are tangentially related,
we first set forth the facts related to the 2006 disciplinary proceeding. We next
address the facts related to the 2007 disciplinary proceeding. Finally, we set forth
the facts related to the circuit court proceeding.
1
We note that Greene discusses in her brief and that the parties were questioned during oral
argument about a dispute she had with the Board regarding the contents of its notification to the
National Practitioner Data Bank (the Data Bank). Although this issue is not before us, it appears
to us that the report incorrectly indicated that Greene’s license had been suspended and that she
was “unable to practice safely by reason of alcohol or other substance abuse.” Both of these
statements appear to be unsupported by the Board’s opinion. Greene argued that these
misstatements, which it took her more than a year to “correct” have had a devastating impact on
her practice. We are concerned by the Board’s apparent lack of concern regarding these
misstatements and its apparent failure to cooperate with Greene in correcting or explaining them
to the Data Bank. However, because this issue is not before us, we can only express our concern.
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1. 2006 Disciplinary Proceeding
In March 2006, the Board charged Greene with multiple counts of
administering conscious sedation without a valid permit. Prior to a hearing, the
Board and Greene entered into a settlement agreement. Pursuant to the terms of
the agreement, the Board: issued a reprimand; placed Greene on probation for
seven years; fined Greene $3,000.00; required Greene to attend at least six hours of
continuing dental education regarding dental anesthesia practice, technique, and
safety; and required Greene to submit to monitoring by the Board. The agreement
also provided that, after five years of successful compliance, Greene could request
termination of the remainder of her probation. Greene complied with the
agreement except with regard to payment of the $3,000.00 fine. We note that
Greene ultimately paid that fine after the hearing involving the disciplinary action
that is the subject of this appeal.
2. The 2007 Disciplinary Action
In this action, the Board brought three charges against Greene, only
two of which are pertinent to this appeal. Because the facts surrounding each
charge differ, we separately set them forth below.
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a. Chronic and Persistent Alcoholism
In the late 1990s, Greene went through a difficult divorce, had to
relocate her practice, and lost a brother to cancer. She testified that she began
drinking fairly heavily at that time, and the records indicate that she received two
or three driving while intoxicated (DUI) citations and had her driver’s license
suspended. In December 2000, Greene sought assistance from the Kentucky
Dental Association’s Well-Being Committee (the Well-Being Committee), a
committee designed, in pertinent part, to monitor the recovery process for impaired
dentists and dental hygienists. It appears from the record that Greene was referred
to the Well-Being Committee because she had written four prescriptions for
narcotics to her boyfriend. The Well-Being Committee referred Greene to a
psychiatrist, Dr. Elliott, for evaluation.
Greene gave Dr. Elliott a history of alcohol abuse that began
approximately six years earlier. According to Dr. Elliott, Greene had received one
DUI in 1996 and two DUIs in 1997 and underwent treatment for her alcoholism in
1998. She stopped drinking for eight months, then relapsed. However, Dr. Elliott
noted that Greene had begun attending a recovery group and had not had any
alcohol for approximately five months before seeing him. Dr. Elliott also noted
that Greene reported suffering from longstanding depression and that she had
treated with Dr. Cox for that condition for twenty-five years. Based on his
evaluation, Dr. Elliott made diagnoses of alcohol dependence in partial remission
with recurrent major depression.
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In June 2001, Dr. Elliott noted that Greene was not attending any
alcoholics anonymous (AA) meetings. Dr. Elliott changed his diagnosis to alcohol
dependence in remission, but he expressed serious concerns about Greene’s
stability because of her failure to attend any AA meetings.
In September 2003, Dr. Elliott noted that Greene had not had any
alcohol since 2000 and that she was “recovering.” Dr. Elliott last saw Greene on
April 19, 2006. At that time, he noted that Greene was under investigation for
administering conscious sedation without a valid permit. Greene again reported
that she was not attending AA meetings but that she had not had any alcohol since
2000. Dr. Elliott continued his diagnosis of alcohol dependence in remission and
opined that Greene could continue to safely practice dentistry.
One month later, on May 26, 2006, Greene’s vehicle ran off the road
and struck a brick mail box. Greene left the scene of the accident to find a
telephone. Officer Miller, who responded to the scene, found Greene sitting on a
bench in front of a grocery store near the scene of the accident. He smelled alcohol
on Greene’s breath but, because she apparently had suffered a head injury, he did
not perform any field sobriety tests. Because he smelled alcohol, Officer Miller
charged Greene with DUI and with leaving the scene of an accident. Officer
Miller asked Greene to submit to either a blood alcohol or breathalyzer test and
gave her the opportunity to contact an attorney. Greene was unable to contact an
attorney, and she refused to submit to either test. In July 2006, Greene entered an
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Alford plea of guilty to “first offense DUI” in exchange for a recommended fine of
$200.00 plus court costs and a forty-five day suspension of her driver’s license.
In January 2007, Greene voluntarily entered into a monitoring
agreement with the Well-Being Committee. Pursuant to the agreement, Greene
was required to attend three AA meetings per week and to provide the committee’s
director with a log verifying that attendance. Greene was also required to submit
to random drug testing and to report any citations or arrests. Greene did not
always timely provide the documentation to verify her AA meeting attendance and,
in November 2007, she asked to put the agreement into abeyance pending
resolution of the foreclosure on her house and various other matters.
b. Failure to Create and Maintain Records
From November 2004 to October 2006, Borton worked for Greene,
answering the telephone, scheduling appointments, and handling billing. In July
2005, Greene performed implant surgery on Borton. In order to perform the
procedure, Greene administered an injection of a local anesthetic and nitrous oxide.
However, when the bill for this treatment was sent to Borton’s insurer, it contained
a charge of $233.60 for administration of IV sedation. Shortly after leaving
Greene’s employ, Borton filed a complaint with the Board alleging, in part, that
Greene had fraudulently billed her insurer for a procedure, IV sedation, that had
not been performed.
c. The 2007 Administrative Proceedings
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On March 7, 2007, the Board filed a notice of administrative hearing
and show cause order charging, in pertinent part, that Greene: had a wreck in May
2006 while intoxicated; entered into an Alford plea of guilty to DUI; failed to
submit documentation as required by her monitoring agreement with the WellBeing Committee; and failed to keep adequate written dental and medical history
records regarding her treatment of Borton.2 In her response, Greene admitted that
she had a problem with alcohol abuse; that she was involved in a motor vehicle
accident while under the influence of alcohol; that she left the scene of the
accident; and that she entered into an Alford plea of guilt to DUI. Greene denied
that she failed to create and maintain a complete record regarding her treatment of
Borton and she argued that any failure to timely file documentation pursuant to the
monitoring agreement should be excused.
On November 27, 2007, a panel consisting of two members of the
Board and a hearing officer from the Attorney General’s office heard testimony
regarding the above charges. Because that testimony is crucial to this appeal, we
summarize it in detail below.
Dr. Cox testified that he began treating Greene for depression in 1993.
Between 1998 and 2001, his treatment related to both depression and alcohol abuse
or dependency. Dr. Cox noted that Greene initially had some difficulty
overcoming her alcohol dependence; however, she did so by sometime in 2001.
2
The Board also alleged that Greene fraudulently billed an insurance company for administering
IV sedation during Borton’s implant procedure. However, the Board ultimately determined that
there was insufficient evidence to support this allegation and dismissed the related charge.
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According to Dr. Cox, Greene had no alcohol related problems between then and
her DUI in 2006. In fact, based on what Greene told him, Dr. Cox believed that
Greene’s 2006 accident was not the result of alcohol consumption but wet roads.
Throughout his treatment of Greene, Dr. Cox made diagnoses of alcohol
dependence in either partial remission or remission. He does not believe that
Greene “has chronic alcohol dependency, because she seem[ed] to have gained
control of this problem back in 2001[,]” with no evidence of ongoing abuse or
dependence since then. Furthermore, Dr. Cox testified that, although Greene is
alcohol dependent, that differs from being a “chronic and persistent alcoholic.”
According to Dr. Cox,
[c]hronic and persistent alcoholism would be the case
where, unlike Doctor Morgan [sic] since 2001, she would
have either been drinking continuingly [sic] during this
time or have many episodes of alcohol intoxication,
multiple interferences in her life due to this - - several
times a year, typically. . . . I do not think she’s a chronic
persistent alcoholic.
However, Dr. Cox also testified that he believed that “once an alcoholic, always an
alcoholic,” that he agreed with Dr. Elliott’s assessment that Greene is a
“recovering alcoholic,” and that she should avoid drinking alcohol.
Borton testified that Greene had performed implant surgery in July
2005 and had not used IV sedation. However, when she received a statement from
her insurer, Borton noted that her insurer had been charged for IV sedation.
Although she recognized this was incorrect, Borton did not report this discrepancy
to the Board until after she stopped working for Greene in October 2006.
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With regard to the alcohol related charges, Borton testified that, in
December 2005, Greene came to the office late one day and smelled of alcohol.
However, Borton stated this was the only day she thought Greene was impaired
while treating patients and she never saw Greene drinking alcohol while at the
office.
Dr. Marquita Pointer (Pointer) testified that she is a practicing dentist
and investigator for the Board. Pointer reviewed Greene’s records related to
Borton’s July 2005 implant and noted that the record reflected administration of IV
sedation, which was not done. Furthermore, although a local anesthetic would
have been administered, the record did not contain any reference thereto either.
Brian Fingerson (Fingerson), the director of the Well-Being
Committee, testified that he is not a psychiatrist or psychologist. His role with the
committee is to refer impaired professionals to a psychiatrist or psychologist for
evaluation and treatment. Fingerson then monitors that treatment and the
professional’s rehabilitation.
Fingerson noted that Greene was involved with the Well-Being
Committee when he began working for the committee in 2003. However, he had
no personal contact with Greene until December 2006, when she wrote to him
saying that “it had been suggested” that she renew her contact with the Well-Being
Committee. In January 2007, Greene entered into a monitoring agreement with the
Well-Being Committee that required her to attend three AA meetings a week, to
submit to random drug screens, and to report any arrests or citations. Fingerson
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stated that Greene had not completely complied with the agreement because she
had failed to submit some AA meeting attendance logs and had not timely
submitted others.
We note that Fingerson expressed a firm belief that successful
treatment of alcoholism requires AA or some other formal support group.
Therefore, he questioned Greene’s commitment to sobriety because of her apparent
failure to attend meetings regularly. Finally, although Fingerson stated that
alcoholism is chronic and persistent, he agreed that a person who is not drinking is
not a chronic and persistent alcoholic.
Greene testified that she began treating with Dr. Cox for depression
after her parents died. In the late 1990’s, she had some problems related to alcohol
abuse, which she attributed to her divorce, the death of her brother, and having to
relocate her practice. Dr. Cox helped her with her alcohol abuse problems as did
her family, friends, and church. Greene testified that, with that help, she was able
to control her alcohol abuse and that she did not drink alcohol for a period of six
years.
Greene admitted that she had not always timely provided the
documentation required by her 2007 monitoring agreement. However, she stated
that she had a number of concerns - theft by an employee, downsizing of office
staff, marital problems, and financial difficulties – that prevented her from timely
complying. Furthermore, although Greene recognized that AA can be useful in
treating alcohol dependence, she testified that she did not find it to be that helpful.
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Instead of AA, Greene relies on treatment by Dr. Cox and support from friends and
family to help her with sobriety.
As to her May 26, 2006, DUI, Greene testified that she had remarried
and her husband had a substance abuse problem, was abusive, and was a habitual
criminal. On May 24, two days before her arrest, Greene’s husband had been
admitted to rehabilitation, and he had left his truck in her office parking lot. She
took her husband’s truck when she left work and went to her nephew’s for dinner.
At dinner, in celebration of her husband’s admission to rehabilitation, Greene
testified that she had a glass to a glass and a half of wine. She stated that she was
not impaired when she left her nephew’s, that it had been raining, and that she lost
control of the truck because she was not used to driving it and it hydroplaned.
Because it was late at night and she did not see any lights in nearby houses, she
walked to the grocery store looking for a telephone. Greene explained that she was
disoriented because she had struck her head on the steering wheel but that she was
not drunk. She did not submit to a blood alcohol or breathalyzer test because she
was not able to contact her attorney to get advice.
As to the billing, Greene stated that the charge for IV sedation on the
statement sent to Borton’s insurer was simply a clerical error and that she did not
submit the statement to the insurer, Borton did. However, Greene admitted that
she did not attempt to correct that error until January 2007, a year and a half after
the procedure.
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In addition to the preceding, the Board reviewed Dr. Elliott’s records
and heard testimony from Greene’s nephew, who began working for her in the fall
of 2006, and three former employees. All four witnesses testified that Greene had
not exhibited any evidence of alcohol abuse or impairment while working.
Furthermore, Greene’s nephew confirmed Greene’s testimony that she had only
had a glass to a glass and a half of wine the night of her 2006 DUI.
Following the hearing, the panel unanimously found that Greene
failed to keep dental and medical history records sufficient to justify a course of
treatment. Specifically, the panel found that Greene’s records regarding Borton’s
implant surgery did not contain “what anesthesia was used for several procedures
. . . the results of radiographs performed for the procedures . . . recommendations
for post-operative analgesia . . . the lot and tracking numbers for the dental implant
used . . . tracking numbers for bone graft material used . . . and consent to surgery.”
The panel determined that the deficiencies in the records in evidence were
sufficient to support the need for Greene to take remedial education and training
courses on documentation and record keeping. However, they were not sufficient
to support suspension of Greene’s license.
The panel also found that Greene suffers from chronic alcoholism. In
doing so, the panel noted Greene’s: 2006 accident; her Alford plea of guilt to DUI;
her admission that she had “a couple glasses of wine” the night of her accident;
her prior DUIs; Dr. Cox’s diagnosis of alcohol dependence in remission; Dr.
Elliott’s diagnosis of alcohol dependence in partial remission; Greene’s
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participation in the Well-Being Committee program in the late 1990s to early
2000s; her voluntary participation in that program beginning in January 2007; and
her failure to comply with the monitoring agreement she signed in January 2007.
Finally, the panel stated that Dr. Cox testified that Greene is not “both a chronic
and persistent alcoholic” (emphasis in original), implying that Dr. Cox never
addressed whether Greene is not a chronic or persistent alcoholic.
3. The Circuit Court Proceeding
Greene timely filed an original action in circuit court contesting the
Board’s findings. Following receipt of memoranda and argument of counsel, the
court upheld the Board’s decision. In doing so, the court determined that KRS
13B.150 is constitutional, noting that the Supreme Court of Kentucky had recently
reiterated the standard to be used in reviewing administrative agency decisions in
Kentucky Retirement Systems v. Bowens, 281 S.W.3d 776, 779-80 (Ky. 2009).
Applying that standard of review, the court then found that the Board did not act in
excess of its authority and did not deny Greene due process. Furthermore, the
court found that Dr. Elliott’s records, Dr. Cox’s testimony, and Greene’s four
DUI’s were sufficient evidence to support the Board’s finding that Greene suffers
from chronic alcoholism.
STANDARD OF REVIEW/ANALYSIS
The issues presented require different standards of review and are
dependent on different facts. Therefore, we address each issue separately below.
1. Constitutionality
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Our standard of review regarding questions of law is de novo. Carroll
v. Meredith, 59 S.W.3d 484, 489 (Ky. App. 2001). Therefore, we review Greene’s
constitutionality arguments using that standard.
Greene raises two issues with regard to constitutionality. The first is
that, because “chronic alcoholism” is not defined in KRS 313.130(6), she was
deprived of her constitutionally guaranteed rights to due process and equal
protection of the law. The second issue is that KRS 13B.150 unconstitutionally
deprives a reviewing court of the ability to meaningfully review administrative
agency actions. We address each issue in turn.
KRS 313.130 provides that
[t]he board may, upon complaint or upon its own motion,
after a hearing conducted in accordance with KRS
Chapter 13B, issue a private admonishment, reprimand,
or place on probation, or may revoke, suspend, refuse to
renew, or refuse to issue a license to any dentist for any
of the following causes:
...
(6) Chronic or persistent alcoholism.
As admitted by the Board and pointed out by Greene, KRS Chapter 313 does not
provide a definition of what constitutes chronic alcoholism. When a statute does
not define terms, they are to “be construed according to the common and approved
usage of language . . . ” unless they are “technical words and phrases” or “have
acquired a peculiar and appropriate meaning in law.” KRS 446.080(4); see also
Alliant Health System v. Kentucky Unemployment Ins. Com’n, 912 S.W.2d 452,
454 (Ky. App. 1995).
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Greene’s argument on this issue is somewhat confusing. It appears
that she is arguing that the panel could not have used a common and approved
definition of “chronic alcoholism” because the evidence would not support a
finding of that condition if such a definition had been used. That is a substantive
evidence argument, not a constitutional one. We address the substantive evidence
arguments below. However, assuming that Greene is arguing that the KRS
313.130(6) is constitutionally deficient because the term “chronic alcoholism” is
not defined, we will briefly address that argument.
As noted in KRS 446.080(4), words in statutes are to be construed
according to their common and approved language. Technical words and phrases,
or those with a peculiar meaning in the law, shall be construed according to that
meaning. The word alcoholism is a commonly understood word. Furthermore,
although Greene argues to the contrary, Dr. Elliott indicated in his December 20,
2000, report that Greene was seeking treatment for her “alcoholism.” Dr. Cox
testified that he agreed with Dr. Elliott’s statement in 2003 that Greene is a
“recovering alcoholic,” and Greene admitted in her response to the notice of
administrative hearing and show cause order that she has a problem with alcohol
abuse. Because Greene’s own expert witness agreed that she is a recovering
alcoholic, there was no need to provide a definition of the term, statutorily or
otherwise.
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As to the word “chronic,” that is not a word that has acquired any
peculiar meaning in the law. Therefore, the Board was free to construe it
according to its common meaning.
Even if a definition were required, the one offered by Greene - a
disease “of long duration or characterized by slowly progressive symptoms; deepseated and obstinate, or threatening a long continuance; distinguished from acute” is not helpful to her cause. Dr. Cox, Greene’s expert witness, admitted that he
agreed with the statement “once an alcoholic, always an alcoholic.” That falls
within the definition of a disease of long duration. Furthermore, Greene’s history
of DUIs, her history of treatment with Dr. Cox for alcohol dependence, her
admission that she has a problem with alcohol abuse, and her participation in the
Well-Being Committee’s program in 2000 and 2006 indicate she has a disease of
long duration. Therefore, Greene’s argument to the contrary notwithstanding, the
evidence supported a finding that Greene’s alcoholism is chronic. Based on the
preceding, we hold that KRS 313.130(6) is not unconstitutional as applied to
Greene.
We next address Greene’s argument that KRS 13B.150 is
unconstitutional. As we understand her argument, Greene believes that KRS
13B.150 is unconstitutional because it negates the requirement that the Board make
findings based on a preponderance of the evidence and it mandates that a
reviewing court accept all factual findings by the administrative body. We
disagree.
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As to Greene’s first argument, that KRS 13B.150 alters the burden of
proof, it appears that Greene is mixing the proverbial apples and oranges. KRS
13B.090(7) provides that the party with the burden of proof can only meet that
burden with a preponderance of the evidence. This refers to the quantity of
evidence. KRS 13B.150 provides in pertinent part that a court may only reverse an
agency’s final order if the court finds the order is “[w]ithout support of substantial
evidence on the whole record.” This refers to the quality of the evidence.
Therefore, KRS 13B.150 does not alter the burden of proof. Furthermore, it does
not, as Greene argues, remove from the court the ability to determine if substantial
evidence exists, it mandates such a determination.
Greene’s second argument, that KRS 13B.150 unconstitutionally
requires a court to unquestioningly accept the findings of fact by an agency is
equally unpersuasive. KRS 13B.150(2)(d) states that, if an administrative agency’s
final judgment is “arbitrary, capricious, or characterized by abuse of discretion” we
may reverse it. Therefore, a reviewing court can, and must, examine an agency’s
findings of fact to determine if they are arbitrary, capricious or reveal an abuse of
discretion. That is not unquestioned acceptance of an agency’s findings and is
essentially the same standard a reviewing court applies to a jury determination.
See Bierman v. Klapheke, 967 S.W.2d 16, 18 (Ky. 1998). Furthermore, as noted
by the circuit court and the Board, the Supreme Court of Kentucky, as recently as
2009, reiterated that the above standards are appropriate for review of
administrative agency final orders. Kentucky Retirement Systems v. Bowens, 281
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S.W.3d 776, 779-780 (Ky. 2009). We are bound to follow precedent set by our
Supreme Court. SCR 1.030(8)(a). Therefore, even if we were inclined to accept
Greene’s argument as persuasive, which we are not, we can not diverge from
standing precedent.
2. Sufficiency of Evidence for Finding of Chronic Alcoholism
Greene argues that the Board did not have sufficient evidence to
support its finding that she suffers from chronic alcoholism. When reviewing a
decision of a circuit court upholding a final judgment of an administrative agency,
this Court must determine if the circuit court’s findings upholding that decision are
clearly erroneous. When reviewing the agency’s final judgment, the circuit court
may not reinterpret or reconsider the merits of the case, nor substitute its judgment
for that of the agency as to the weight of the evidence. Johnson v. Galen Health
Care, Inc., 39 S.W.3d 828, 833 (Ky. App. 2001); Kentucky Unemployment
Insurance Commission v. King, 657 S.W.2d 250, 251 (Ky. App. 1983); and
Kentucky Racing Commission v. Fuller, 481 S.W.2d 298, 309 (Ky. 1972). As long
as there is substantial evidence in the record to support the agency’s decision, the
court must defer to the agency, even if there is conflicting evidence. Kentucky
Commission on Human Rights v. Fraser, 625 S.W.2d 852, 856 (Ky. 1981). With
this standard in mind, we review the record to ascertain if the Board’s
determination that Greene suffers from chronic alcoholism is supported by
substantial evidence.
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Greene argues that the Board ignored the expert opinion of Dr. Cox
that she does not suffer from chronic alcoholism. However, that is not the case.
The Board, through its adoption of the hearing panel’s recommended findings,
stated that it did consider Dr. Cox’s testimony. Furthermore, Greene’s argument to
the contrary notwithstanding, Dr. Cox testified that he agreed with Dr. Elliott’s
statement that Greene is a recovering alcoholic and Dr. Cox agreed that alcoholism
is not curable. That testimony, in conjunction with Greene’s history of multiple
DUI’s and recurrent contact with the Well-Being Committee, is sufficient evidence
of substance to support the Board’s finding that Greene suffers from chronic
alcoholism.
3. Sufficiency of Evidence for Finding that Greene
Failed to Keep Adequate Records
Greene argues that the Board’s finding that she failed to keep dental
and medical history records sufficient to justify a course of treatment is not
supported by substantial evidence because it is based on the review of only one
record. The standard of review for this issue is the same as for the preceding issue.
In support of her argument, Greene states that Dr. Pointer, the Board’s
expert witness regarding recordkeeping, agreed that one patient record was not
sufficient to determine if a pattern of recordkeeping existed. Greene also argues
that Dr. Pointer testified that a review of deficiencies in one patient record is not
sufficient to support “a disciplinary action.”
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During the disciplinary hearing, Dr. Pointer testified regarding the
deficiencies she found in Greene’s records regarding the implant she performed on
Borton. However, she did not state, or even imply, that deficiencies in one patient
record were insufficient to justify discipline. Greene’s counsel asked Dr. Pointer if
“any mistake in a medical record, in a dental record requires discipline,” to which
Dr. Pointer responded, “That’s not my call.” Following an objection by counsel
for the Board, Greene’s counsel asked and Dr. Pointer responded as follows:
Q. So my question to you is, in turn - - is the standard of
- - for the Board, in terms of you being an investigator
and a teacher and those things that you said that you are,
any omission from a dental record is by its existence a
violation of law and requires discipline, or is there a
pattern of omission that raises - - that differs - - that
makes it differ from a mistake to a disciplinary action?
A. In my opinion, the absence of that documentation
means that this is not standard for complying with our
Dental Practice Act law requiring complete
documentation on a patient’s treatment. Now, whether - if we looked at many of her records, we could better
determine if this is a pattern or if this is the single
isolated instance, and we don’t have that privilege here.
So I couldn’t say whether in this particular case, this is a
single incident or if this is a pattern for her.
While Dr. Pointer did state that one record does not a pattern make, she did not
state that disciplinary action could not or should not be based on deficiencies in
one record. Therefore, the record does not support Greene’s argument.
Furthermore, we note that 201 KAR 8:430 Section 2(4) provides that
“[a] licensee shall be guilty of ‘unprofessional conduct’ if the licensee: [f]ails to
keep written dental records and medical history records that justify the course of
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treatment of the patient . . . .” The regulation refers to the patient, not patients;
therefore, review of only one patient’s record is not outside the purview of the
regulation. Additionally, the regulation does not state that discipline is contingent
on a finding of a pattern of failure to keep records. Therefore, we discern no error
in the Board’s finding that Greene failed to keep records sufficient to justify a
course of treatment.
CONCLUSION
Having reviewed the record and arguments of counsel, we hold that
neither KRS 13B.150 nor KRS 313.130 are facially unconstitutional nor are they
unconstitutional as applied to Greene. Furthermore, we agree with the circuit court
that the record contains sufficient evidence of substance to support the Board’s
findings and that the Board did not abuse its discretion. Therefore, we affirm.
ALL CONCUR.
BRIEFS AND ORAL ARGUMENT
FOR APPELLANT:
BRIEF FOR APPELLEE:
Jack Conway
Attorney General of Kentucky
J. Fox DeMoisey
Louisville, Kentucky
Mark Brengelman
Assistant Attorney General
Frankfort, Kentucky
ORAL ARGUMENT FOR
APPELLEE:
William A. Bausch
Assistant Attorney General
Frankfort, Kentucky
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