The Interplay of Administrative Dental License Discipline And Dental Malpractice PROFESSIONAL LIABILITY DEFENSE FEDERATION 2013 Annual Meeting Chicago,

Greetings from San Francisco!

The Interplay of Administrative Dental License Discipline And Dental Malpractice

PROFESSIONAL LIABILITY DEFENSE FEDERATION

2013 Annual MeetingChicago, Illinois

Presented byWilliam 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


“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)


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


“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)


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.


“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


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


“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)


“Clearly excessive…

prescribing, furnishing, dispensing, or administering.”

Misdemeanor

fine: $100 --$600

imprisonment: 60 -180 days

both


Aiding and Abetting

Sule v. Guam Bd. of Dental Examiners, 2008 Guam 20


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)


Addiction Issues

“The Other Bar”

Diversion Programs

Reality Check

Require New License Application


“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


“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)


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.”


= 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.”


Bases of Discipline: Incompetence

“Incompetence generally is defined as a lack of knowledge or ability in the discharging of professional obligations.”



Gross Negligence

Incompetence

Discipline: Exceeding Scope Of Practice*

“But in performing the elective cosmetic procedures, [Dentist] violated OCGA § 43-11-17 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 ConductDifficult 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/SubstantiveStatutes 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)


“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)


“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


“[Board] has convincingly demonstrated through testimony and documentary evidence that [Dentist] committed the acts charged and has earned the revocation sought.”

Board Closing Brief


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



“Risks, Benefits, And Alternatives”

Informed (Legal) Consent

CYA

Legal Malpractice Issues re RBA


Settlement Of Civil Malpractice Cases

Policy

Statutory

Hammer Clauses

Excess and Surplus Lines


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


Q&A

I’m Outta HereThank You Very Much!

Documents

The Interplay of Administrative Dental License Discipline And Dental Malpractice PROFESSIONAL LIABILITY DEFENSE FEDERATION 2013 Annual Meeting Chicago,