ORDERS:
ORDER
STATEMENT OF THE CASE
This matter came before the undersigned on November 30, 2004, for a hearing on Dr.
Robert J. Lagroon’s Notice of Appeal and Petition for Administrative Review filed on March 17,
2003. The Board brought this disciplinary action against Appellant by filing and serving a
Formal Accusation and Notice of Hearing upon Appellant on May 22, 2002. The Formal
Accusation alleged that Appellant: (1) failed to meet the appropriate standard of care in the
treatment of a minor patient, MD; and (2) permitted or allowed an unlicenced person, GM, to
engage in the practice of dental hygiene. The Formal Accusation included the specific statutes
and regulations which were alleged to be violated as a result of Appellant’s conduct: S.C. Code
Ann. § 40-1-110(f),(g),(k) & (l) (Supp. 2001); S.C. Code Ann. § 40-15-190(A)(4),(9),(14) &
(15) (Supp. 2001); S.C. Code Ann. § 40-15-212 (Supp. 2001); and 23A S.C. Code Ann. Regs.
39-11(1)(B) & (F) (1976). I affirm in part and strike in part.
STANDARD OF REVIEW
As set forth above, this case is before the Administrative Law Court (ALC or Court) as
an appeal of an agency action pursuant to S.C. Code Ann. § 1-23-600(D) (1986 & Supp. 2001)
of the Administrative Procedures Act (APA) upon appeal from a Final Order of a licensing board
or commission. As such, the Administrative Law Judge sits in an appellate capacity under the
APA rather than as an independent finder of fact. In South Carolina, the provisions of the APA -- specifically Section 1-23-380(A)(6) -- govern the circumstances in which an appellate body
may reverse or modify an agency decision. That section sets forth, in relevant part:
The court may reverse or modify the decision if substantial rights of the appellant
have been prejudiced because the administrative findings, inferences, conclusions
or decisions are:
(a) in violation of constitutional or statutory provisions;
(b) in excess of the statutory authority of the agency;
(c) made upon unlawful procedure;
(d) affected by other error of law;
(e) clearly erroneous in view of the reliable, probative and substantial
evidence on the whole record; or
(f) arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
S.C. Code Ann. § 1-23-380(A)(6) (1986 & Supp. 2001).
A decision is supported by “substantial evidence” when the record as a whole allows
reasonable minds to reach the same conclusion reached by the agency. Bilton v. Best Western
Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984). The well-settled case law in
this state has also interpreted “substantial evidence” to mean that a decision will not be set aside
simply because reasonable minds may differ on the judgment. Lark v. Bi-Lo, 276 S.C.130, 276
S.E.2d 304 (1981). The fact that the record, when considered as a whole, presents the possibility
of drawing two inconsistent conclusions from the evidence does not prevent the agency's finding
from being supported by substantial evidence. Waters v. South Carolina Land Resources
Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. South Carolina Coastal
Council, 319 S.C. 348, 461 S.E.2d 388 (1995).
In applying the substantial evidence rule, the factual findings of the administrative
agency are presumed to be correct. Rodney v. Michelin Tire Co., 320 S.C. 515, 466 S.E.2d 357
(1996), citing Kearse v. State Health and Human Services Finance Comm'n, 318 S.C. 198, 456
S.E.2d 892 (1995). Furthermore, the reviewing court is prohibited from substituting its
judgment for that of the agency as to the weight of the evidence on questions of fact. Grant v.
South Carolina Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995), citing Gibson v. Florence
Country Club, 282 S.C. 384, 318 S.E.2d 365 (1984). Finally, the party challenging an agency
action has the burden of proving convincingly that the agency's decision is unsupported by
substantial evidence. Waters, supra, citing Hamm v. AT&T, 302 S.C. 210, 394 S.E.2d 842
(1990).
ISSUES PRESENTED
I. Is the Board’s finding that Appellant departed from the standard of care used in
the profession of dentistry in his treatment of patient MD supported by substantial
evidence?
II. Is the Board’s finding that Appellant employed and permitted an unlicenced
person to practice dental hygiene supported by substantial evidence?
III. Are the sanctions imposed by the Board designed to protect the public and
supported by substantial evidence?
IV. Did the Board have authority to convict Appellant of violating Section 40-15-212?
DISCUSSION
Treatment of Patient MD
Appellant argues the Board erred in finding that Appellant departed from the standard of
care used in the profession of dentistry in his treatment of patient MD. I disagree.
The Board found that Appellant failed to meet the standard of care in the practice of
dentistry in connection with his treatment of patient MD, as evidenced by his failure to
adequately evaluate MD’s case, his failure to record a clear diagnosis, his failure to record the
prognosis of the case, his lack of a complete treatment plan, and his lack of an adequate
explanation of treatment goals. Because dentistry is a recognized profession or specialty in
South Carolina, the standard of care in the field must be established by the testimony of one
knowledgeable or skilled in the practice of dentistry. In Keaton v Greenville Hospital System,
334 S.C. 488, 514 S.E.2d 570 (1999), the Supreme Court addressed the issue of the professional
standard of care in South Carolina. The Keaton Court stated that: “The degree of care which
must be observed is, of course, that of an average, competent practitioner acting in the same or
similar circumstances.” Keaton at 496 (quoting, King v. Williams, 276 S.C. 478, 279 S.E.2d
618, 620 (1981)). This requirement was satisfied by Dr. Linn S. Tompkins, a Board-certified
dentist and orthodontist. In addition to the testimony of Dr. Tompkins, the Board is enabled by
statute to use its collective experience, technical competence, and specialized knowledge in the
evaluation of the evidence. See S.C. Code Ann. § 1-23-330(4) (1986 & Supp. 2001) (“Notice
may be taken of judicially cognizable facts. In addition, notice may be taken of generally
recognized technical or scientific facts within the agency’s specialized knowledge.”).
Accordingly, the dentist members of the Board are presumptively competent to pass on the
standard of care for the practice of dentistry.
The evidence established that the Appellant conducted an initial examination, including
paronex and bitewing x-rays of MD in his office on September 8, 1998. However, the Dental
Board could not determine a diagnosis from the record, and the treatment plan did not specify a
treatment goal. Appellant admitted that the goal was not laid out and could only be inferred
from MD’s records.
Nevertheless, on October 10, 1998, Appellant placed orthodontic brackets on several of
MD’s upper teeth, and an upper right lateral incisor was extracted. However, the records
originally provided to the Board did not mention missing, malformed, or ankylosed teeth, nor
was there any discussion of the patient’s occlusion. On December 7, 1998, Appellant also
placed orthodontic brackets and an archwire on MD’s lower bicuspids, cuspids, and incisors.
Again, there is no explanation or reason for these appliances in the record. Moreover, Dr.
Tompkins found no valid purpose for these appliances.
Additionally, MD’s records did not include diagnostic models, which the Board found
were essential. In fact, Dr. Tompkins concluded that Appellant’s positioning of the anterior
teeth by placement of “Maryland” bridges would make the patient’s overbite worse than it
otherwise would have been. Dr. Tompkins further surmised that MD was likely not given a
correct diagnosis or adequate treatment plan to address the problems presented because
Appellant failed to conduct a comprehensive evaluation of MD’s dental occlusion. Based upon
these observations, Dr. Tompkins testified that Appellant’s treatment of MD was outside the
standard of care for the practice of dentistry in South Carolina.
The above establishes substantial evidence to support the Board’s decision. Moreover,
the Conclusions of Law regarding Appellant’s resultant violations of the Board’s statutes and
regulations logically flow from these Findings of Fact. I, therefore, find that the Board’s
decision should be affirmed concerning this violation. See Livingston v. Town of Mount
Pleasant, 356 S.C. 354, 588 S.E.2d 630 (Ct. App. 2003) (Stating that “the reviewing court must
affirm the agency’s decision if it is supported by substantial evidence” and “may not substitute
its judgment for that of the agency upon questions as to which there is room for a difference of
intelligent opinion.”).
Employment of Unlicenced Dental Hygienist
The Board found that Appellant permitted an unlicenced person, GM, to practice dental
hygiene, in violation of S.C. Code Ann. § 40-15-190(A)(4) (Supp. 2001). Appellant argues there
is no substantial evidence to support that determination. Under Section 40-15-190(A)(4), a
dentist commits misconduct when he employs or permits an unlicenced or unregistered person to
practice dental hygiene or to perform dental technological work except as permitted by statute.
GM began working exclusively for Appellant in 1996. She testified that from 1999 to
when she left Appellant’s office in October 2000 that she performed cleanings during regular
business hours when Appellant was in the office. She specifically recalled cleaning the teeth of
Angela Darby, Martha Jo Harvell, and David Harvell. GM testified that she did not have a
dental hygiene license and that Appellant knew she was not a licensed dental hygienist. Other
than being certified to take x-rays around 1982, she did not have any education or certification
related to dental work.
In addition to the testimony of GM, Angela Darby testified that Appellant was her
regular dentist for approximately two to three years. She stated that GM cleaned her teeth during
regular working hours, which included scraping the plaque from her gums, polishing, and
flossing. Appellant came in and checked her teeth following cleanings. Martha Jo Harvell also
testified that GM cleaned her teeth at Appellant’s office during regular working hours and that
the cleaning included scraping, polishing, and flossing. David Harvell testified that GM
performed his cleanings, including scraping and polishing, during regular office hours.
Furthermore, Amy Towe, who was employed by Appellant for approximately nine months from
August 2000 to May 2001, testified that GM had several responsibilities in Appellant’s office
during regular business hours, including cleaning, scaling, polishing, and flossing. Towe
testified that Appellant observed GM cleaning teeth.
Appellant testified that he did not authorize GM to practice dental hygiene. He stated
that he did not discover that GM was practicing dental hygiene in his office until he began
preparing for his defense in this case. Appellant also presented evidence that when GM cleaned
patients’ teeth, he was not in the office and she was doing the cleanings outside of working hours
and without his knowledge. Appellant contends that the Board’s witnesses were simply
“disgruntled former employees.”
Though there is conflicting testimony among the witnesses in this case, on questions of
witness credibility, the appellate court defers to the judgment of the agency. Milliken &
Company v. South Carolina Employment Security Comm’n, 321 S.C. 349, 468 S.E.2d 638
(1996). Here, the Board believed the testimony of GM and the patients who testified she cleaned
their teeth. This testimony constitutes substantial evidence to support the Board’s finding that
Appellant permitted an unlicenced person to practice dental hygiene. Accordingly, I affirm the
decision of the Board.
Sanctions
Appellant argues that the sanctions imposed were unnecessary for the protection of the
public, were unsupported by substantial evidence, were punitive, and were arbitrary and
capricious. “When making this determination, the Board must insure that the sanction imposed
is consonant with the purpose of these proceedings.” Wilson v. State Board of Medical Exam’rs,
305 S.C. 194, 406 S.E.2d 345, 346 (1991).
Any sanctions imposed should not just seek to
discipline the physician but also to protect the health, and welfare of the people. Id.
In the present case, the Board imposed a $10,000.00 fine and placed Appellant on
probationary status for five years. During that time frame, Appellant must successfully complete
both an ethics and a record keeping course. His orthodontic cases and office procedures will
also be subject to random reviews by Board representatives. In addition, Appellant is required to
appear and report to the Board as requested. The Board’s decision sets forth that in making
those determinations the Board did not seek to punish Appellant but rather weighed the public
need for continued qualified service against the concern to protect society. The Board also
argues on appeal that it imposed the fine to defray its cost of supervising Appellant.
I find that in disciplinary cases in which a dentist’s license is not revoked, a fine may be
imposed simply as discipline against a dentist. Here, the Board’s fine and probationary
requirements are clearly supported by substantial evidence in the record. Furthermore, there is
no evidence that the Board’s sanction in this case was intended to be punitive in nature. Rather,
the sanction imposed appears intended to protect the health and welfare of the people of South
Carolina by allowing the Board to monitor Appellant. Nevertheless, based upon the Board’s
reasoning that the fine was imposed to defray the cost of supervision, I find that the language in
the 2(C) of the Board’s Order setting forth that “[t]he cost of such reviews shall be borne by the
Respondent” should be stricken in lieu of the payment of the fine. Thus, I affirm the Board’s
Order as modified.
Section 40-15-212
Appellant argues that the Board lacked authority to convict him of violating Section 40-15-212. Section 40-15-212 states as follows:
A person who practices dentistry or dental hygiene or performs dental
technological work, in violation of this chapter or who aids or abets a person in
violating this chapter, upon conviction, must be fined not more than one thousand
dollars or imprisoned for not more than two years, or both. Each day a violation
occurs constitutes a separate offense.
Although the Board stated that Appellant violated this statue, the authority to convict and/or
sentence him for that crime is within of the province of the Circuit Court of General Sessions.
See S.C. Const. art. V, § 11 (circuit courts have general criminal jurisdiction). Furthermore, the
Board’s authority to discipline Appellant is granted pursuant to S.C. Code Ann. § 40-15-200
(Supp. 2001). That section states that the Board has the power to revoke or suspend a dentist’s
license, reprimand dentists either publicly or privately, or take other reasonable action short of
revocation or suspension, such as placing a dentist of probation. The Board may also assess a
civil find up to $10,000.00. However, Section 40-15-200 does not give the Board the authority
to find Appellant guilty of violating a criminal statute.
Although the Board cannot convict Appellant, I find that this language in the Conclusions
of Law that the Appellant violated 40-15-212 is mere dicta and inconsequential to the Board’s
decision. As such, the language should not have been included in the Conclusions of Law and
should therefore be stricken.
ORDER
Accordingly, based on the foregoing reasons, the decision of the Board is AFFIRMED
IN PART AND STRICKEN IN PART.
AND IT IS SO ORDERED.
_________________________________
Ralph King Anderson, III
Administrative Law Judge
April 12, 2005
Columbia, South Carolina |