ROLAND C BROCKRIEDE DDS V DEPT OF CONSUMER & INDUSTRY SERV
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STATE OF MICHIGAN
COURT OF APPEALS
ROLAND C. BROCKRIEDE, D.D.S.,
UNPUBLISHED
March 15, 2002
Petitioner-Appellant,1
v
DEPARTMENT OF CONSUMER & INDUSTRY
SERVICES,
No. 228678
Bureau of Health Services
LC No. 98-000063
Respondent-Appellee.2
Before: Sawyer, P.J., and Murphy and Hoekstra, JJ.
PER CURIAM.
Roland C. Brockriede, D.D.S., appeals as of right from the final order of the Department
of Consumer & Industry Services Bureau of Health Services Board of Dentistry Disciplinary
Subcommittee (“BDDS”) adopting the hearing referee’s proposal for decision (PFD). We
affirm.
Brockriede was a licensed dentist in Michigan with a license to prescribe controlled
substances. Rebecca Johnson became one of Brockriede’s patients after he met her outside of
the office. Brockriede prescribed Valium, Percodan, Vicodin, and Tylenol No. 3 to her.
Brockriede knew that Rebecca Johnson had a prior drug abuse problem when he prescribed
controlled substances to her. However, he thought she had completed a drug rehabilitation
program. Brockriede then hired Rebecca Johnson to work for him. As an employee of
Brockriede, Rebecca Johnson had access to the computers that could alter prescriptions. During
her employment, Brockriede caught Rebecca Johnson changing the amount of refills on her
prescriptions. He then terminated her employment with him. After this date, Brockriede
continued to prescribe Tylenol No. 3 for her.
1
Although the docket sheet refers to Brockriede as “petitioner” and the Department of Consumer
& Industry Services as “respondent,” the Department of Consumer & Industry Services Bureau
of Health Services Dentistry Disciplinary Subcommittee filed the administrative complaint
against Brockriede.
2
See n 1.
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Brockriede treated Deanne Beatty for two abscessed teeth and prescribed Vicodin and
Tylenol No. 3 for her. However, Brockriede’s dental records only showed that he had prescribed
Tylenol No. 3 for her. Brockriede could not explain why the Vicodin prescriptions were not
included in Beatty’s dental records. Brockriede also prescribed Percodan and Valium for Stacy
Johnson. At one point, Brockriede noticed that there was a problem with the amount of
Percodan he was prescribing, so he stopped prescribing it for her.
A woman named Samantha Fox originally made allegations against Brockriede that he
was over-prescribing drugs. A pharmacist at Meijer’s then contacted the Michigan Health
Regulatory Department regarding Brockriede’s questionable prescriptions of drugs. Defendant
then began an investigation of Brockriede, which included, inter alia, interviews and
subpoenaing dental records. After the investigation, the BDDS filed an administrative complaint
against Brockriede, alleging that he violated various sections of the Public Health Code, MCL
333.1101 et seq., by treating his patients negligently, by lacking good moral character, by
prescribing excessive amounts of controlled substances, and in failing to record all of his
prescriptions in dental records. At the administrative hearing, Brockriede and Carol HaynesHall, a pharmacy inspector for the Michigan Health Regulatory Department, testified about these
charges. During his examinations of Haynes-Hall and Brockriede, Brockriede’s attorney
attempted to ask questions about the BDDS’s basis for investigating Brockriede, but the hearing
referee did not allow the questions.
After Brockriede and Haynes-Hall had testified, the hearing referee stated that it would
allow further testimony by way of deposition transcripts. The hearing referee also ordered
Brockriede to turn over Rebecca Johnson’s and Stacy Johnson’s dental records. Both parties
later deposed their own expert witness and submitted this testimony to the hearing referee.
Defendant’s expert, Dr. L. George Upton, opined that Brockriede was negligent in treating and
hiring Rebecca Johnson and had over-prescribed drugs for Rebecca Johnson, Deanne Beatty, and
Stacy Johnson. Brockriede’s expert, Dr. Donald Wolford, opined that Brockriede had not acted
negligently or over-prescribed any of his patients.
In the hearing referee’s PFD, he found that Brockriede was negligent in regard to his
treatment of Rebecca Johnson by failing to investigate her substance abuse history, by hiring her
in a position where she could alter prescription refills, by prescribing controlled substances to her
without first having obtained information regarding her substance abuse problem, and by failing
to consult a pain management specialist for her, in violation of MCL 333.16221(a). The hearing
referee found that Brockriede had also violated MCL 333.16221(b)(i) by his incompetent
treatment of Rebecca Johnson. However, the hearing referee found that Brockriede had not
over-prescribed controlled substances to Rebecca Johnson or Beatty, and therefore, had not
violated MCL 333.16221(c)(iv). Next, the hearing referee held that the BDDS had failed to
prove that Brockriede lacked good moral character or had violated MCL 333.16221(b)(vi).
Finally, the hearing referee found that Brockriede violated MCL 333.11120(2)(d) by failing to
record Beatty’s Vicodin prescriptions. Both parties filed exceptions to the PFD. The BDDS
subsequently issued a final order adopting the PFD and ordering that: (1) Brockriede’s dentistry
license be limited for at least one year so that he could not prescribe any Schedule II controlled
substances, (2) Brockriede be placed on probation for at least one year, (3) Brockriede perform
one-hundred hours of community service, and (4) Brockriede be fined $1,000.
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“There are three ways to seek review of a decision by an administrative agency: (1)
review pursuant to a procedure specified in a statute applicable to the particular agency, (2) the
method of review for contested cases under the APA [The Administrative Procedures Act, MCL
24.201 et seq.], or (3) an appeal pursuant to § 631 of the Revised Judicature Act (RJA), MCL
600.631, in conjunction with MCR 7.104(A).” Attorney General v Public Service Comm No 1,
237 Mich App 27, 40; 602 NW2d 207 (1999). Under MCL 333.16238, a final decision of a
disciplinary subcommittee rendered after January 1, 1995, may be appealed only to the Court of
Appeals. Brockriede argues that he is entitled to review under the APA, citing MCL 24.306.
The APA provides the following standard of review:
Except when a statute or the constitution provides for a different scope of
review, the court shall hold unlawful and set aside a decision or order of an
agency if substantial rights of the petitioner have been prejudiced because the
decision or order is any of the following:
(a) In violation of the constitution or a statute.
(b) In excess of the statutory authority or jurisdiction of the agency.
(c) Made upon unlawful procedure resulting in material prejudice to a
party.
(d) Not supported by competent, material and substantial evidence on the
whole record.
(e) Arbitrary, capricious or clearly an abuse or unwarranted exercise of
discretion.
(f) Affected by other substantial and material error of law.
24.306(1).]
[MCL
Brockriede argues that the standard of review for this issue is de novo. This Court has
held that review under the APA is not de novo. Michigan Waste Systems v Dep’t of Natural
Resources, 147 Mich App 729, 735; 383 NW2d 112 (1985). However, Brockriede’s arguments
involve some statutory interpretation. Questions of statutory interpretation are questions of law
that are reviewed de novo on appeal. Oakland Co Bd of Rd Comm’rs v Michigan Property &
Casualty Guaranty Ass’n, 456 Mich 590, 610; 575 NW2d 751 (1998).
Brockriede argues that the hearing referee denied his right to due process by not allowing
him to cross-examine Haynes-Hall regarding the propriety of the BDDS’s investigation of
Brockriede. Brockriede argues that there were several procedural problems with the BDDS’s
investigation: the allegation against him that began the investigation was not in writing and the
BDDS did not file a formal complaint against him within the required time. Brockriede argues
that he was prejudiced by being prevented from cross-examining Haynes-Hall regarding these
issues.
“A party’s right to cross-examine adverse witnesses is a basic due process right.” Great
Lakes Division of National Steel Corp v City of Ecorse, 227 Mich App 379, 426; 576 NW2d 667
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(1998). “Although agencies need not adhere to evidentiary rules as rigidly as courts, agencies
must respect the due process rights of parties to cross-examine adverse witnesses.” Cooper v
Chrysler Corp, 125 Mich App 811, 818; 336 NW2d 877 (1983). In the instant case, Brockriede
was given the opportunity to cross-examine Haynes-Hall, but the hearing referee did not allow
questions concerning the propriety of the investigation of Brockriede. The only case cited by
Brockriede in support of his position that this was an infringement of his due process rights is
Bohannon v Sheraton-Cadillac Hotel, Inc, 3 Mich App 81, 82; 141 NW2d 722 (1966), which
states, in pertinent part, that “[w]hen an administrative agency promulgates a rule for the benefit
of the litigants and then deprives a litigant of this right, it is a violation of the due process clauses
of both the 1908 and 1963 Michigan Constitutions.” Brockriede does not cite any administrative
rule that the hearing referee violated by disallowing these questions. Brockriede goes on to
argue reasons why the BDDS’s investigation of him was procedurally flawed, but does not cite
any applicable law in support of his argument that the hearing referee erred in disallowing crossexamination concerning this subject.
Where an appellant gives only cursory consideration to an argument that he was denied a
right to cross-examine witnesses at a hearing, this Court need not address the issue. Great Lakes
Division of National Steel Corp, supra at 425. Even if this Court were to address Brockriede’s
cross-examination argument, the facts that Brockriede was trying to elicit on cross-examination
related to meritless arguments. The hearing referee did not allow Brockriede to cross-examine
the witnesses regarding the BDDS’s alleged violations of MCL 333.16211(2) and MCL
333.16231(5). These sections of the Public Health Code do not provide for sanctions for noncompliance. Following the reasoning of Dep’t of Consumer and Industry Services v Greenberg,
231 Mich App 466, 468-469; 586 NW2d 560 (1998), the language in these sections of the Public
Health Code should be construed as being permissive. Therefore, even if we were to address the
merits of Brockriede’s argument that the hearing referee improperly disallowed him from asking
certain questions on cross-examination, the issues Brockriede was trying to raise on crossexamination were without merit. Furthermore, Brockriede has not shown that his substantial
rights were prejudiced by the hearing referee’s ruling.
Next, Brockriede argues that the hearing referee erred in allowing additional discovery
after the hearing. He argues that the BDDS improperly used its inquisitorial power to build a
case against Brockriede. However, Brockriede cites no law in support of his argument that the
hearing referee may not order additional discovery after a hearing. Because this argument lacks
any citation of supporting authority, this Court declines to address it. Great Lakes Division of
National Steel Corp, supra at 425. “This Court will not search for authority to support a party’s
position.” Id.
Next, Brockriede seems to argue that the hearing referee should have directed a ruling in
favor of Brockriede when it was apparent that the BDDS did not have sufficient evidence to
support its claims without the expert deposition testimony of Dr. Upton. As discussed, supra,
Brockriede has not cited any legal authority showing that the hearing referee should not have
allowed Dr. Upton’s deposition testimony. However, even without Dr. Upton’s testimony, there
was substantial evidence to support the final order. Brockriede admitted that he knew Rebecca
Johnson had a prior drug abuse problem when he prescribed controlled substances to her.
Brockriede then hired Rebecca Johnson to work for him where she had access to the computers
that could alter prescriptions. He then testified that he caught her changing the amount of refills
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on her prescriptions. Even after this date, Brockriede continued to prescribe Tylenol No. 3 for
Rebecca Johnson. Brockriede testified that her drug history had no bearing on his prescriptions.
Brockriede testified that he did not formally consult with any other dentists or pain management
specialists during his treatment of Rebecca Johnson. We find that this was substantial evidence
for the hearing referee to find that Brockriede was negligent and fell below the minimum
standards in his treatment of Rebecca Johnson. In regard to Beatty, there is evidence that
Brockriede had prescribed Vicodin for her. However, Brockriede’s dental records only showed
that he had prescribed Tylenol No. 3 for her. Brockriede could not explain why the Vicodin
prescriptions were not included in Beatty’s dental records. This writer opines that this was
substantial evidence for the hearing referee to find that Brockriede failed to include Beatty’s
Vicodin prescriptions in her dental records.
In his deposition after the hearing, Dr. Upton opined that Brockriede was negligent in
treating Rebecca Johnson. Dr. Upton testified that Brockriede was incompetent in treating and
hiring Rebecca Johnson, who he knew had a history of drug abuse, without verifying her status
in a rehabilitation center. Dr. Upton opined that Brockriede should not have prescribed Schedule
II drugs to Rebecca Johnson because of her history of substance abuse and because the drugs
could have aggravated her sleep problems. Dr. Upton next opined that Brockriede should have
referred her to a drug rehabilitation clinic. We find that there is substantial evidence to support
the final order without Dr. Upton’s testimony, but Dr. Upton’s testimony gives even more
evidence in support of the final order.
Next, Brockriede seems to argue that the hearing referee erred in failing to direct a
verdict in his favor because Dr. Upton did not review the x-rays of Rebecca Johnson.
Brockriede’s argument seems to attack Dr. Upton’s credibility for failing to review the x-ray.
Although Dr. Upton admitted that he did not look at Rebecca Johnson’s x-rays, Brockriede does
not give any indication what was on the x-rays and gives no reason why the x-rays would have
changed Dr. Upton’s opinion or the outcome of the case. After looking at all of the evidence, the
hearing referee believed Dr. Upton and found that Brockriede had been incompetent in his care
of Rebecca Johnson. As discussed, this finding was supported by substantial and competent
evidence. When there is sufficient evidence, a reviewing court must not substitute its discretion
for that of the administrative tribunal, even if the court might have reached a different result.
Black v Dep’t of Social Services, 195 Mich App 27, 30; 489 NW2d 493 (1992).
It is not a reviewing court’s function to resolve conflicts in the evidence or
to pass on the credibility of witnesses. Great deference is given to the findings of
the hearing examiner because, as the trier of fact, he or she had the opportunity to
hear the testimony and view the witnesses. [Arndt v Dep’t of Licensing and
Regulation, 147 Mich App 97, 101; 383 NW2d 136 (1985) (citation omitted).]
Therefore, we defer to the hearing referee’s determination that Dr. Upton was a credible witness
and accept his finding that Brockriede was incompetent in his care of Rebecca Johnson.
Affirmed.
/s/ David H. Sawyer
/s/ William B. Murphy
/s/ Joel P. Hoekstra
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