2. The Interplay of Administrative Dental License Discipline And Dental Malpractice PROFESSIONAL LIABILITY DEFENSE FEDERATION 2013 Annual Meeting Chicago, Illinois Presented by William Manning, Esq. Van De Poel, Levy & Allen, LLP

3. This Will Be Over In A Flash!

4. There Will Be A Test. Don’t Fail.

5. 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

6. 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

7. 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

8. “You’re Kidding!?” Hungry lawyers + even hungrier clients in difficult economic times mean no case is too small.

10. Diastema dī'ə-stē'mə “An abnormal space between two adjacent teeth in the same dental arch.” Mosby’s Dental Dictionary 1998

15. Truth Is Stranger Than Fiction

16. Let’s Get Started

17. 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

18. 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

20. 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

21. 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.

24. License Regulation

25. Overview Of License Regulation Statutory/Regulatory Common Law – all but 8 states

26. Overview Of License Regulation “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

27. Overview of License Regulation Statutory Authority “Dental/Dentistry Practice Act” “Health Occupations Revision Act” (D.C.) “The Dental Law” (PA) “Act 368” (MI)

28. 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)

29. Overview Of License Regulation Department Of Consumer Affairs Dental Board of California 8 practicing DDS 1 RDH 1 RDA 5 Public

30. 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.

31. 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)

32. Stormy Weather

33. 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

34. Nightmare In The Dental Chair

35. Nightmare in the Dental Chair People v. Griswold Board v. Griswold

36. 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)

37. 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.]

38. License Discipline: Financial Loss Loss Of Privileges = Loss Of Business PPO HMO Traditional Indemnity Private Pay

39. License Discipline: Insurability Loss of Top Coverage High Risk Category Lower Limits More costly No Discipline Coverage

40. 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?

41. 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!

42. 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)

43. Sources Of Administrative Investigations

44. Sources: Patient Complaints Obligation To Investigate Complaint Disgruntled Patients Billing Disputes Insurance Dilemmas Plaintiff’s Attorneys

46. Sources: Third Party Reports Public Agency Other Professions Colleagues Disgruntled Employees Peer Review Issues 805 Reports

47. Sources: Malpractice Malpractice Settlements By Insurer By Uninsured Doctor Malpractice Judgments By Clerk of Court

48. 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

50. 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

52. Reporting Limits By State

53. Bases Of Discipline

54. 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

55. Bases of Discipline: Criminal “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)

56. Bases of Discipline: Criminal 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.

57. Bases of Discipline: Criminal “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

58. Bases of Discipline: Criminal 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

59. Bases of Discipline: Criminal “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)

60. Bases of Discipline: Criminal “Clearly excessive… prescribing, furnishing, dispensing, or administering.” Misdemeanor fine: $100 --$600 imprisonment: 60 -180 days both

61. Bases of Discipline: Criminal Aiding and Abetting Sule v. Guam Bd. of Dental Examiners, 2008 Guam 20

62. Bases of Discipline: Criminal A DDS and His Gun

63. 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)

64. Bases of Discipline: Addiction Addiction Issues “The Other Bar” Diversion Programs Reality Check Require New License Application

65. Bases of Discipline: Addiction “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

66. 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

67. Bases of Discipline: Sexual Misconduct With Patient “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)

68. Bases of Discipline: Sexual Misconduct With Patient 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)

69. 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)

70. 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)

71. 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)

72. Bases of Discipline: Clinical Allegations Repeated Acts of Negligence Gross Negligence Gross Violation of SOC Incompetence

73. Bases of Discipline: Repeated Acts of Negligence “Departure from standard of care.” Repeated Acts of Negligence = more than one James v. Board of Dental Examiners (1985) 172 Cal. App. 3d 1096

74. Bases of Discipline: Gross Negligence “An extreme departure from the accepted standards of care of dental practitioners.” James v. Board of Dental Examiners (1985) 172 Cal. App. 3d 1096

75. Bases of Discipline: Incompetence “Incompetence generally is defined as a lack of knowledge or ability in the discharging of professional obligations.” James v. Board of Dental Examiners (1985) 172 Cal. App. 3d 1096

76. Repeated Acts of Negligence

77. Gross Negligence

78. Incompetence

79. 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.

80. Discipline: Unprofessional Conduct

81. Difficult 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

82. Unprofessional Conduct Risk Examples The Smock Kid And Dad Lady DDS

83. Overview Of Administrative Process

84. Administrative Authority Due process considerations Emergency Revocation Investigation Process Accusation/Petition re Discipline Discovery Settlement Pre-hearing conference

85. Overview Of Investigation Who Investigates? “Dear Doctor” letter Failure to comply = discipline Board Evaluation AG Referral

87. That Visceral Feeling

88. “Baggage Claim” http://av8.home.comcast.net

89. Emergency Revocation Authority Time limits Not always a bad thing

90. Discipline Pleadings “Petition” “Accusation” “OSC Alleging Violation”

92. First Appearance Response To Accusation Tight time limits! Notice of Defense Affirmative Defenses

95. Pleading Defenses Affirmative Defenses: few Amending Pro Per appearance Waiver

96. Administrative Discovery “Discovery” is an oxymoron Limited or Highly Limited Tight time limits Depositions Dismissal For Failure To Make

97. Pre-Trial Matters Pre-hearing Conference Settlement Conference Settlement Terms & Conditions

98. Administrative Hearing Who hears? Administrative Law Judge Administrative Magistrate Hearing Officer/Examiner Licensing Board Peers

100. “Kangaroo Court” “Mr. Manning’s medi-legal argument” “Don’t bother me with the science”

101. Administrative Standards of Proof Standards of Proof: real or illusory? Statutory Case Law

102. 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

103. Defenses: Procedural/Substantive Statutes Of Limitation Due Process Considerations Standard of Care Fact And Opinion Waiver Issues Importance Of Local Law

104. 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

105. Defenses: Standard of Care Primary mode of defense Experts Critical Board Consultant Board hack Defense experts must be better

106. 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)

107. 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)

108. 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)

109. Defenses: Fact And Opinion Fact and opinion Critical nature of the chart Complete familiarity with entries Electronic charts Digital radiographs

111. Defenses: Causation “My son is better off.” Lack Of Injury/Damages

112. 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)

113. Due Process Considerations “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)

114. Due Process Considerations “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)

115. Administrative Decision Who decides? Proposed Decision Adopt or Non-Adopt “Not a danger to the public.”

116. 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

117. Post-Hearing Relief Jurisdiction/Timing Issues Reconsideration Stay

118. Post-Decision Relief Finality of Decision Trial Court Venue Issues Writ Stay Standard of Review

119. Post-Judgment Relief Court of Appeal Temporary Stay Supersedeas Standard of Review

120. Remand Protocol: déjà vu all over again

121. Discipline aka Punishment

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

123. Discipline aka Punishment 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

125. Prior/Other Discipline

126. Levels Of Discipline Revocation Suspension Probation Public Reproval Private Reproval

127. Adding Insult To Injury Costs of Prosecution Restitution to victim Limited recovery to successful DDS

128. 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)

129. Other Aspects Of Discipline Supervised practice Monitor Limited scope of practice

130. Citations And Fines

131. Terms and Conditions Numerous Mandatory Admission of fault

132. Judicial Review Of Discipline “Manifest abuse of discretion.”

133. Recovery

134. Avoidance Damage Control – You Can Help! Preparation Letters Recovery Proceedings Petition To Terminate Probation Petition To Restore License

136. The Crucial Importance Of Insurance Availability Of Coverage Costs of legal defense Expert costs Increasing Use Of Sub-Limits

137. The Crucial Importance Of Insurance Need For Excess Policy Examples

138. 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

139. Handling The Civil Malpractice Case To Maximize Disciplinary Defense Conflicts of Interest ACO Hospitalists Kaiser Liability Insurers

140. Ancillary Matters 805 Reports And Proceedings Denial Of License Surrender In Lieu Restoration/Reinstatement Proceedings To Terminate Discipline

141. RBA101 For The Legal Practitioner

142. “Risks, Benefits, And Alternatives” Informed (Legal) Consent CYA Legal Malpractice Issues re RBA

143. RBA101 For The Legal Practitioner Settlement Of Civil Malpractice Cases Policy Statutory Hammer Clauses Excess and Surplus Lines

144. RBA101 For The Legal Practitioner 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.

145. Course Summary

146. 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 RBA101 For The Legal Practitioner

147. Q&A

148. I’m Outta Here Thank You Very Much!