Braun v. Board of Dental Examiners

Braun v. Board of Dental Examiners  (96-105); 167 Vt. 110; 702 A.2d 124

[Filed 5-Sep-1997]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                            No. 96-105


Peter L. Braun, D.D.S.                       Supreme Court

                                             On Appeal from
    v.                                       Washington Superior Court

Board of Dental Examiners                    March Term, 1997



David A. Jenkins, J.

David A. Otterman of Otterman and Allen, P.C., Barre, for appellant.

Wendy A. Burroughs, Assistant Attorney General, Waterbury, for appellee.


PRESENT:  Gibson, Dooley, Morse and Johnson, JJ., and Allen, C.J.
          (Ret.), Specially Assigned


       GIBSON, J.   Peter Braun, a licensed dentist, appeals the Washington
  Superior Court's order affirming disciplinary action imposed by the Vermont
  Board of Dental Examiners.  On appeal, Dr. Braun contends (1) that the
  evidence before the Board was insufficient to support its finding that his
  actions constituted a gross failure to uphold the standard of care, (2)
  that the actions for which he was disciplined were authorized by statute
  and regulation, (3) that he was given inadequate notice of the violations
  for which he was disciplined, and (4) that the statute is
  unconstitutionally vague.  We affirm.

       The basic facts are not in dispute.  Dr. Braun has a dental practice
  where he provides general dental care and runs a lab in which dentures are
  manufactured.  In July 1992, patient H.D. met with Dr. Braun to talk about
  having her remaining twenty-three teeth removed and replaced with dentures. 
  After examining the patient, Dr. Braun directed his dental assistant (a
  person authorized by statute to assist a licensed dentist) to take
  impressions of the patient's teeth to make temporary, or "immediate,"
  dentures.  Approximately one month later, all of H.D.'s

 

  teeth were removed by an oral and maxillofacial surgeon.  The surgeon
  inserted the immediate dentures from Dr. Braun on the day H.D.'s teeth were
  removed.

       On August 14, three days after the extraction of her teeth, H.D.
  returned to Dr. Braun's office, complaining of sore spots.  She was seen by
  the dental assistant, who removed her dentures and observed that her
  stitches had not yet been removed.  The assistant then discussed the
  situation with Dr. Braun separately, who examined the dentures and directed
  his assistant to make an alteration.  The assistant did so and returned the
  dentures to H.D.  H.D. left the office without being examined by Dr. Braun. 
  On August 26, one week after the oral surgeon removed her stitches, H.D.
  returned to Dr. Braun for another appointment.  Again the patient was seen
  only by the dental assistant.  The assistant conferred with Dr. Braun, who
  directed him to perform a soft-tissue relining.

       On September 15, more than one month after H.D.'s teeth were removed,
  she returned for another appointment, complaining of discomfort.  She was
  seen by Dr. Braun on this visit, who examined her and scheduled an
  additional relining.  H.D. returned on October 29, still complaining of
  discomfort.  She was seen by the dental assistant, and her dentures were
  again altered after the assistant consulted with Dr. Braun.  H.D. left
  without being examined by Dr. Braun.

       H.D. subsequently filed a complaint.  The State brought charges of
  unprofessional conduct, and following a hearing, the Board of Dental
  Examiners found that Dr. Braun had violated the statutory standard of care
  and ordered him to enroll in a continuing-education program.  See 26 V.S.A.
  §§ 767, 809(a) (authorizing Board to investigate complaints and discipline
  licensees).  Pursuant to 3 V.S.A. § 130a(a), (b), Dr. Braun appealed the
  Board's decision to the Director of the Office of Professional Regulation,
  which affirmed the order.  Dr. Braun then appealed to the Washington
  Superior Court, see 3 V.S.A. § 130a(c), which reviewed the case on the
  basis of the record created by the Board and affirmed the decision.  This
  appeal followed.

 

                                     I.

       Dr. Braun first argues that the evidence before the Board was
  insufficient to support its finding and conclusion that his treatment of
  H.D. constituted a gross failure to uphold the statutory standard of care. 
  That standard allows the Board to discipline a dentist for the:

     gross failure to use and exercise on a particular occasion or the
     failure to use and exercise on repeated occasions, that degree of
     care, skill and proficiency which is commonly exercised by the
     ordinary skillful, careful and prudent dentist . . . engaged in
     similar practice under the same or similar conditions, whether or
     not actual injury to a patient has occurred.

  26 V.S.A. § 809(a)(21).  We have stressed that grossly negligent conduct is
  more than a mere error of judgment, momentary inattention, or loss of
  presence of mind.  Hardingham v. United Counseling Serv. of Bennington
  County, Inc., 164 Vt. 478, 481, 672 A.2d 480, 482 (1995). Rather, it is the
  failure to exercise even a slight degree of care and an indifference to the
  duty owed.  Id.; see also Rivard v. Roy, 124 Vt. 32, 35, 196 A.2d 497, 500
  (1963) (defining standard in similar terms under guest-passenger statute,
  since repealed).  We have acknowledged, however, that there is no clear
  dividing line between ordinary and gross negligence; whether certain
  behavior was grossly negligent hinges on the particular circumstances of
  the case.  Hardingham, 164 Vt. at 481, 672 A.2d  at 483.  Because such a
  finding requires applying the facts to a reasonableness standard, we defer
  to the fact finder's ability to determine whether particular behavior rose
  to the level of gross negligence.  See id. at 487, 672 A.2d  at 486 (Dooley,
  J., dissenting).

       Additional deference is owed here because the action arose out of an
  administrative proceeding in which a professional's conduct was evaluated
  by a group of his peers.  We will affirm the Board's findings as long as
  they are supported by substantial evidence, and its conclusions if
  rationally derived from the findings and based on a correct interpretation
  of the law.  See In re Southview Assocs., 153 Vt. 171, 177-78, 569 A.2d 501, 504 (1989).  Evidence is substantial if, in looking at the whole
  record, see Clark v. Weinberger, 389 F. Supp. 1168,

 

  1169 (D. Vt. 1974), aff'd, 511 F.2d 1390 (2d Cir. 1975), it is relevant and
  a reasonable person could accept it as adequate to support the particular
  conclusion.  In re McShinsky, 153 Vt. 586, 589, 572 A.2d 916, 918-19
  (1990); see Livingston v. Arkansas State Medical Bd., 701 S.W.2d 361, 363
  (Ark. 1986); Homoly v. North Carolina State Bd. of Dental Examiners, 479 S.E.2d 215, 217 (N.C. Ct. App. 1997).  This Court may not substitute its
  own judgment for that of the Board.  See Schneider v. Vermont Employment
  Sec. Bd., 133 Vt. 187, 190, 333 A.2d 104, 106 (1975).  Thus, we are
  concerned with the reasonableness of the Board's decision, not how we would
  have decided the case.  See Texas State Bd. of Dental Examiners v.
  Sizemore, 759 S.W.2d 114, 117 (Tex. 1988), cert. den., 410 U.S. 1080
  (1989); cf. Homoly, 479 S.E.2d  at 218 (board composed of licensed dental
  professionals best qualified to judge whether petitioner violated standard
  of care).

       Upon review of the record, we conclude that the Board could reasonably
  find that Dr. Braun's behavior rose to the level of gross negligence.  In
  arguing that the evidence was inadequate to support the finding, Dr. Braun
  focuses primarily on a statement by the State's expert that an adjustment
  to a patient's denture constitutes a "minor version" of diagnosis.  It is
  undisputed, however, that in the first month following removal of her
  teeth, H.D. returned twice for appointments, at least once complaining of
  pain, and both times Dr. Braun failed to meet with or examine his patient. 
  Instead, he delegated this task to his dental assistant.  On the first
  visit, H.D. complained of pain and the assistant, after removing the
  dentures, conferred with Dr. Braun in another area of the facility, passing
  along his observation that H.D.'s stitches had not yet been removed.  At
  Dr. Braun's direction, the assistant modified the dentures on a lathe to
  remove an undercut.  The same procedure occurred on the second visit, with
  patient contact solely between H.D. and the dental assistant, followed by
  consultation between the dental assistant and Dr. Braun in another part of
  the building.  Not until more than a month following the extraction, when
  H.D. returned for an appointment again complaining of pain, was she
  examined by Dr. Braun.  On the fourth visit, H.D. -- still complaining of
  pain -- was again seen

 

  only by the dental assistant.  Although the patient came to Dr. Braun's
  office several times complaining of pain following the removal of
  twenty-three teeth, on only one occasion was she examined by him to
  determine the cause of her pain and discomfort.

       In addition to the undisputed facts underlying the case, the Board
  heard expert testimony on the standard of care.  The State's expert
  testified that H.D.'s sore spots could have been caused by a number of
  problems other than the denture, including osteonecrosis of the bone, a
  root tip, an abscess ulcer, or oral cancer, and that a technician is not
  trained to recognize such conditions.  In effect, the expert stated, Dr.
  Braun allowed the assistant to determine the cause of the problem, and
  there was no way for Dr. Braun to ascertain whether that determination was
  correct.  The expert testified that allowing an assistant to determine the
  cause of pain and the need to modify a denture, along with adjusting the
  denture itself, violates the statutory standard of care.

       As a body composed primarily of dental professionals, the Board has
  the power to apply its own expertise in evaluating the evidence.  See
  Briggs v. State Employees Retirement Comm'n, 554 A.2d 292, 294-95 (Conn.
  1989) (agency composed of physicians entitled to rely on its own expertise
  within area of professional competence).  We conclude that there was
  sufficient evidence for the Board to find that Dr. Braun's failure to
  examine his patient after surgery, despite repeated complaints of
  discomfort, and instead, allowing his assistant to examine the patient,
  determine the nature of the problem, and modify her dentures, amounted to a
  gross violation of the standard of care.

                                     II.

       Dr. Braun argues, however, that his actions cannot be cause for
  discipline because the statute and regulations allowed him to delegate the
  tasks for which he was disciplined.  We disagree.  In interpreting a
  statute, we rely on the plain meaning of the words because we presume they
  reflect the Legislature's intent.  Dover Town Sch. Dist. v. Simon, 162 Vt.
  630, 631, 650 A.2d 514, 516 (1994).  The statute that regulates dentists
  and dental assistants provides

 

  that certain tasks may not be assigned to any person other than a licensed
  dentist, including "[d]iagnosis, treatment planning and prescription."  26
  V.S.A. § 864(b)(1); see also Rules of the Board of Dental Examiners, Rule
  3.5, 9 Code of Vt. Rules 04125001-12 (1996) (same). "Diagnosis" is not
  defined in the statute or regulations, but has been described as the
  "identification of a disease or other underlying disorder through
  investigation of its manifestations"; as such, it is a problem-solving
  activity based, in part, on physical examination and observation over the
  course of the illness or disorder.  1 The Oxford Companion to Medicine 309
  (John Walton et al. eds., 1986); see also Black's Law Dictionary 408 (5th
  ed. 1979) (medical term meaning determination of nature of patient's
  disease from study of symptoms); Black's Medical Dictionary 250 (34th ed.
  1984) (diagnosis involves weighing symptoms complained of and signs of
  disease found upon examination).

       In arguing that his assistant's actions were allowed under the law,
  Dr. Braun limits his characterization of the assistant's actions to
  altering H.D.'s dentures on a lathe.  It is clear, however, that more than
  that was involved.  On three of the four follow-up visits after receiving
  her immediate dentures, H.D. met only with the assistant to discuss how the
  dentures fit, and to complain of pain and discomfort.  On at least one
  occasion, the assistant conducted an intraoral evaluation, removing the
  dentures and observing that H.D.'s stitches were still in place. Any
  subsequent modification of the dentures at Dr. Braun's direction was based
  either on the assistant's observations or on patient information relayed by
  the assistant.  We agree with the Board's finding that an adjustment to an
  immediate denture must be based on evaluation of the patient's healing
  progress, and conclude that this process -- conducted here by the dental
  assistant -- qualifies as a diagnosis.  As such, it may not be performed by
  a dental assistant.

       Nonetheless, Dr. Braun points to two provisions that he asserts allow
  him to delegate to dental assistants the tasks for which he was
  disciplined.  The Board's rules allow a traditional dental assistant to
  "perform all extraoral duties in the dental office," while during
  "intraoral procedures, the . . . [a]ssistant may assist the [d]entist or
  clinical staff as assigned by the

 

  [d]entist."  Rules of the Board of Dental Examiners, Rule 2.3(C)(2), 9 Code
  of Vermont Rules 04125001-3.  We see nothing in this rule that would
  authorize a dental assistant to perform an intraoral examination and then
  consult with a dentist as a procedure for remedying the patient's
  complaint.  Dr. Braun's attempt to characterize the assistant's actions as
  solely "extraoral duties" fails in the face of clear evidence of the need
  to examine the inside of the patient's mouth in order to diagnose and treat
  her discomfort.

       Likewise, we are unconvinced by Dr. Braun's interpretation of other
  statutory language. We presume that the Legislature does not intend an
  interpretation that would lead to absurd or irrational consequences.  In re
  Judy Ann's Inc., 143 Vt. 228, 232, 464 A.2d 752, 755 (1983). Section 864(a)
  states that "[t]he performance of any intraoral tasks shall be under the
  direct supervision of the employer dentist."  26 V.S.A. § 864(a).  Dr.
  Braun contends that this language allows a dental assistant to perform "any
  intraoral task" as long as the assistant acts under a dentist's direct
  supervision.  This passage must be read, however, in conjunction with the
  passage immediately following, which lists tasks that "may not be assigned
  to a dental assistant" but must be performed by a licensed dentist only. 
  Id. § 864(b).  One of these tasks is "diagnosis," id., which, as already
  explained, would preclude the assistant's actions here.

                                    III.

       Dr. Braun next argues that he was given insufficient notice to prepare
  for and respond to the issues raised in the proceeding.  He asserts that
  the Board's finding of misconduct was based on his failure to examine H.D.
  personally, although no such violation was charged. Notice of an
  investigation by a licensing board is adequate if it fairly apprises the
  person of the nature of the charges so he may prepare for the hearing and
  defend his position.  See Gaither v. Pennsylvania State Civil Serv. Comm'n,
  324 A.2d 872, 874 (Pa. Commw. Ct. 1974); cf. In re Twenty-Four Vt. Utils.,
  159 Vt. 363, 369, 618 A.2d 1309, 1312-13 (1992) (Court must examine whether
  parties were given adequate opportunity to prepare and respond to issues
  raised in proceeding).

 

       In the amended charges, Dr. Braun was charged with violating the
  statutory standard of care set forth in 26 V.S.A. § 809(a)(21).  The
  statement that he violated the standard of care "when he allowed his dental
  assistant" to perform certain duties specifically raised the issue of Dr.
  Braun's actions during H.D.'s time as a patient.  Further, the charges
  alleging professional misconduct were filed directly against Dr. Braun;
  separate charges were brought against the dental assistant.  This was
  sufficient to inform Dr. Braun that his role in H.D.'s care, including
  adequacy of care, and not merely the actions of his assistant, would be
  scrutinized by the Board. Cf. Kollmorgen v. State Bd. of Medical Examiners,
  416 N.W.2d 485, 489 (Minn. Ct. App. 1987) (doctor improperly
  mischaracterized notice issue where prescribing medication by telephone was
  not independent ground for discipline; question of misprescription embraced
  many subissues to be evaluated before primary question of misconduct could
  be addressed).

                                     IV.

       Finally, Dr. Braun asserts that the statute is unconstitutionally
  vague because, when read together with the rules, it appears to allow a
  dentist to delegate to a dental assistant those duties for which Dr. Braun
  was disciplined.  We agree that "a statute must be sufficiently clear to
  give a person of ordinary intelligence a reasonable opportunity to know
  what is proscribed."  Brody v. Barasch, 155 Vt. 103, 110, 582 A.2d 132, 137
  (1990).  The statute here declares that a dentist licensed in Vermont will
  be held to the degree of care and skill of the ordinarily skillful,
  careful, and prudent dentist engaged in similar practice under the same or
  similar conditions. 26 V.S.A. § 809(a)(21).  More specifically, it clearly
  states that diagnosis, treatment planning, and prescription may not be
  delegated to a dental assistant.  Id. § 864(b).

       As we noted in Brody, it is not necessary, or possible, for a statute
  that regulates a professional field to detail each and every act that is
  prohibited.  See Brody, 155 Vt. at 111, 582 A.2d  at 137.

     [A]ny board or body whose duty it is to pass upon the
     qualifications of licensees of the various professions . . . must do
     so by applying some broad and necessarily general standards.

 

     Statutory language that conveys a definite warning as to proscribed
     conduct when measured by common understanding and practices
     will satisfy due process.

  Id.  The Board found that Dr. Braun violated the standard of care when he
  failed to examine his patient and instead delegated H.D.'s examination to
  his dental assistant.  Personal attention to a patient's needs is a
  critical component of competent medical care.  All tasks that qualify as
  diagnosis, treatment planning, and prescription are explicitly limited to
  licensed dentists.  The statute is sufficiently clear to inform the
  ordinary person that a dentist must personally examine a patient
  complaining of pain to determine the cause of the disorder, and not
  delegate such a task to a dental assistant with only a subsequent
  consultation between the assistant and the dentist in another area of the
  building.  The statute is not unconstitutionally vague.

       Affirmed.

                              FOR THE COURT:



                              _______________________________________
                              Ernest W. Gibson III, Associate Justice