SC Administrative Law Court Decisions

STATEMENT OF THE CASEThis matter is an appeal by Dr. Benetta G. Bell (Appellant) of an Order on Remand (Order), dated April 24, 2000, of the State Board of Dentistry (Board) of the South Carolina Department of Labor, Licensing, and Regulation (Department). The Board issued this Order in response to this tribunal's Order of Remand, dated January 21, 2000, requesting that the Board reconsider the record and the basis for its conclusions in the Board's original order in this matter, the Final Order dated August 17, 1999. In the Final Order dated August 17, 2000, the Board suspended Appellant's license to practice dentistry for five years for professional misconduct; the Board, however, ordered a stay of the suspension of Appellant's license on the condition that Appellant:

(1) pay a $5,000 fine;

(2) successfully complete eight hours of continuing education in ethics within twelve months

of the Board's Order;

(3) successfully complete the Board's jurisprudence examination within ninety days of the

Board's Order; and

(4) comply with the Board's Final Order and all state and federal statutes and regulations

governing the practice of dentistry.

In its Order on Remand dated April 24, 2000, the Board found that Appellant violated S.C. Code Ann. § 40-15-190(A)(4) (Supp. 1997) "in that she . . . employed or permitted an unlicensed person to practice dentistry, as evidenced by [Appellant] allowing or permitting Dr. Chelsey Barbee to practice dentistry in her office." The Board further found that Dr. Prybis, a dentist employed by Appellant, as well as two former employees of Appellant, testified that Dr. Barbee was practicing dentistry without a license in Appellant's office.

More specifically, Dr. Prybis testified that Dr. Barbee performed (1) an emergency tooth extraction on a patient out of the presence of a licensed dentist, and (2) dental work on an anterior tooth of another patient, which might have involved the placement of a temporary crown. (Tr. at 20). Further, the former dental hygienist testified that Dr. Barbee placed sealants on teeth and performed cleanings; she also had Dr. Prybis sign prescriptions for Dr. Barbee, indicating that Dr. Barbee was performing dental procedures such as tooth extractions. (Tr. at 71). Finally, the former dental assistant testified that she observed Dr. Barbee perform amalgams, fillings, and crown preps out of the presence of a licensed dentist. (Tr. at 139-40). She also had knowledge that Dr. Barbee performed cleanings. (Tr. at 152).

Appellant testified that Dr. Barbee presented a diploma from medical school from Howard University and a document from the South Carolina Board of Dentistry stating that Dr. Barbee had successfully completed the South Carolina Board and a jurisprudence examinations. (Tr. at 95-98, Defendant's Ex. 25). Appellant testified that, until the licensure documentation arrived, Dr. Barbee was not authorized to perform dental procedures; she also presented office records supporting that Dr. Barbee did not perform dental procedures. (Tr. at 101). For example, she presented records that indicated that she paid Dr. Prybis, not Dr. Barbee, for performing the emergency tooth extraction that is at issue in this case. (Tr. at 104). Finally, Appellant testified that she never authorized, permitted, condoned, or observed the performance of any dental procedures by Dr. Barbee in her office. (Tr. at 106-07). Dr. Barbee was authorized to work only as a dental hygiene assistant until she submitted her dentistry licensure documentation. (Tr. at 117 & 127). ⁽¹⁾ She also was allowed to assist Appellant during dental procedures by performing suctioning and taking x-rays. (Tr. at 129).

STANDARD OF REVIEW

The provisions of the South Carolina Administrative Procedures Act (APA) govern an appeal from an action of the Board. Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). Under the APA, this tribunal "shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact." S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1999). This tribunal, however, may reverse or modify a decision if substantial rights of an appellant have been prejudiced because the administrative findings or decisions are "clearly erroneous in view of the reliable, probative and substantial evidence on the whole record" or "arbitrary or capricious." Id.

Substantial evidence is that evidence which, in considering the record as a whole, would allow reasonable minds to reach the conclusion of the administrative agency. E.g., Jennings v. Chambers Development Co., 335 S.C. 249, 516 S.E.2d 453 (Ct. App. 1999). The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Id. Where there is a conflict in the evidence, the administrative agency's findings of fact are conclusive. Id. This tribunal cannot substitute its judgment for that of the Board upon a question as to which there is room for a difference of intelligent opinion. E.g., Chemical Leamen Tank Lines v. S.C. Pub. Service Comm'n, 258 S.C. 518, 189 S.E.2d 296 (1972). While a decision of an administrative agency will normally be upheld, the findings may "not be based upon surmise, conjecture, or speculation, but must be founded on evidence of sufficient substance to afford a reasonable basis for it." Mullinax v. Winn-Dixie Stores, Inc., 318 S.C. 431, 458 S.E.2d 76 (Ct. App. 1995).

The burden is on the Appellant to show convincingly that the Board's Order is without evidentiary support or is arbitrary or capricious as a matter of law. See Hamm v. American Telephone & Telegraph Co., 315 S.C. 119, 432 S.E.2d 454 (1993); Hamm v. Pub. Service Comm'n of South Carolina, 310 S.C. 13, 425 S.E.2d 28 (1992). The standard of proof in a medical disciplinary proceeding is a preponderance of the evidence. See Anonymous (M-156-90) v. State Board of Medical Examiners, 496 S.E.2d 17, 329 S.C. 271 (1998) (commenting that it is for the General Assembly to amend the APA and provide a higher standard of proof, if appropriate).

ISSUES ON APPEAL

I. Was the Board's Order supported by substantial evidence?

A. Was there substantial evidence to support the Board's Order?

B. Did the Board apply the correct standard under S.C. Code Ann. § 40-15-190(A)(4)?

II. Was the sanction imposed by the Board punitive in nature or arbitrary and capricious?

III. Was the Board's Order tainted by unlawful procedure?

I. Was the Board's Order Supported by Substantial Evidence?

A. Was there Substantial Evidence To Support the Board's Order?

The acts or omissions which qualify as misconduct and constitute grounds for revocation of a dentist's license are set forth in S.C. Code Ann. § 40-15-190 (Supp. l999). According to the statute, when a dentist has "failed to meet the standards of care in the practice of dentistry," such misconduct is a proper ground for revocation of his license.

A proceeding seeking to suspend or revoke a license of a professional is a serious matter. The professional's ability to earn a living is at stake. Of equal gravity is the public's legitimate interest in the continued services of qualified professionals. Unequivocally, the Board is charged with protecting the public interest by administering the laws and regulations governing the practice of dentistry.

It is therefore imperative, given the magnitude of a case such as this, that the Board's Order clearly and completely articulate the facts and rationale of its conclusion. In the present case, the Board found that Appellant violated S.C. Code Ann. § 40-15-190(A)(4) (Supp. 1997). This section states that:

(A) Misconduct which constitutes grounds for revocation, suspension, probation, reprimand,

or other restriction of a license . . . or other discipline of a dentist . . . occurs when the holder

of a license or certificate:

(4) has employed or permitted an unlicensed or unregistered person to practice

dentistry or dental hygiene or to perform dental technological work . . . .

S.C. Code § 40-15-190(A)(4) (Supp. 1997).

Stated more simply, to constitute a violation under this statute, a dentist must (1) employ or permit (2) an unlicensed person (3) to practice dentistry (or dental hygiene). The first prong suggests the presence of either actual or constructive knowledge. That is, it must be established that the dentist hired or permitted a person to practice dentistry whom she knew or should have known was unlicensed to practice dentistry. ⁽²⁾

In the present case, the statutory standard of care and Appellant's departure therefrom was established through substantial evidence from Dr. Prybis, a dentist employed by Appellant at the time of the alleged acts as well as at the time of the hearing before the Board, and two former employees ⁽³⁾ of Appellant. As stated above, Dr. Prybis testified that Dr. Barbee performed (1) an emergency tooth extraction on a patient out of the presence of a licensed dentist, and (2) dental work on an anterior tooth of another patient, which might have involved the placement of a temporary crown. (Tr. at 20). Further, the former dental hygienist testified that Dr. Barbee placed sealants on teeth and performed cleanings; she also had Dr. Prybis sign prescriptions for Dr. Barbee, indicating that Dr. Barbee was performing dental procedures such as tooth extractions. (Tr. at 71). Finally, the former dental assistant testified that she observed Dr. Barbee perform amalgams, fillings, and crown preps out of the presence of a licensed dentist. (Tr. at 139-40). She also had knowledge that Dr. Barbee performed cleanings. (Tr. at 152). ⁽⁴⁾ Given Dr. Barbee's repeated acts of dentistry in Appellant's office, the Board could reasonably conclude that Appellant should have known that Dr. Barbee was performing the unlicensed practice of dentistry in her office.

Although this tribunal might have weighed the evidence differently had it been in the position of the trier of fact, appellate review of the Board's findings does not allow a re-weighing of the evidence. If there is room for a difference of opinion among reasonable minds, this tribunal is not allowed to substitute its judgment for that of the Board. E.g., Chemical Leamen Tank Lines v. S.C. Pub. Service Comm'n, 258 S.C. 518, 189 S.E.2d 296 (1972). In this case, a review of the whole record reveals that there was conflicting evidence which a reasonable mind might accept as adequately supporting the Board's findings of fact and conclusions of law. This tribunal is compelled by South Carolina precedent to defer to those findings. E.g., Jennings v. Chambers Development Co., 335 S.C. 249, 516 S.E.2d 453 (Ct. App. 1999).

In this case, the Board relied on the testimony of Dr. Prybis that on at least two occasions Dr. Barbee performed dental acts without a license, as well as additional testimony of two former employees that Dr. Barbee performed the unlicensed practice of dentistry (and dental hygienistry). Consequently, the evidence reasonably supports the Board's finding that there were acts by Dr. Barbee of the unlicensed practice of dentistry of which Appellant should have known.

B. Did the Board Apply the Correct Standard under S.C. Code Ann. § 40-15-190(A)(4)?

Appellant complains that the Board misconstrued this tribunal's Order of Remand because there is no evidence that Appellant "knew" of the unlicensed practice of dentistry by Dr. Barbee. Appellant further complains that the Board did not "charge" Appellant with the improper supervision of Dr. Barbee. Appellant, however, has misconstrued the Formal Accusation dated March 23, 1999 against Appellant, the Board's Final Order dated August 17, 1999, and this tribunal's Order of Remand dated January 21, 2000. The Board formally concluded that Appellant violated of S.C. Code Ann. § 40-15-190(A)(4) in its Formal Accusation. (See Formal Accusation dated March 23, 1999, Tr., Plaintiff's Ex. 1). Similarly, the Board concluded that Appellant violated S.C. Code Ann. § 40-15-190(A)(4) in its Final Order. (See Final Order dated August 17, 1999, Findings of Fact #4 & Conclusions of Law #2). As stated above, this statute specifically states that misconduct encompasses permitting the unlicensed practice of dentistry.

This tribunal's Order of Remand to the Board similarly applied the standard set forth in S.C. Code Ann. § 40-15-190(A)(4), which provides that professional misconduct includes permitting the unlicensed practice of dentistry. (See Order of Remand dated January 21, 2000). The January 21 Order further states that the term "permitted" encompasses both actual knowledge and constructive knowledge. See n.4, supra ("permit" means "to give opportunity for" or "to allow or admit of"). Accordingly, if there is evidence that Appellant "should have known" of Dr. Barbee's unlicensed practice of dentistry, there is sufficient evidence to support a finding that Appellant "permitted" the conduct. As stated above, the Board cited sufficient evidence to support a finding that Appellant "permitted" the unlicensed practice of dentistry in her office.

Furthermore, on remand, the Board found that Appellant breached a "duty of care." (See Order on Remand dated April 24, 2000, Conclusion of Law #2). South Carolina case law uses "duty of care" language in connection with the constructive knowledge standard, which was applied in the January 21 Order of Remand. See Scott v. Fruehauf Corp., 396 S.E.2d 354, 357, 302 S.C. 364, 369 (1990) (using both duty of care and constructive knowledge language); Ford v. S.C. Dep't of Transp., 328 S.C. 481, 487, 492 S.E.2d 811, 814 (Ct. App. 1997) (using both reasonable care and constructive knowledge language); Foster v. Greenville County Medical Society, 295 S.C. 190, 192, 367 S.E.2d 468, 469 (Ct. App. 1988) (using both duty of care and constructive knowledge language). Therefore, the Board applied the correct standard under S.C. Code Ann. § 40-15-190(A)(4).

II. Was the Sanction Imposed by the Board Punitive in Nature or Arbitrary and Capricious?

In fashioning a sanction, the Board's Order suspended Appellant's license for five years but ordered a stay of the suspension, provided that certain listed conditions are met. (See Order on Remand dated April 24, 2000). Appellant complains that the sanction was punitive and not reasonably designed to protect the public.

Section 40-15-200 (Supp. 1999) states that the Board has the power to revoke or suspend a dentist's license, reprimand the dentist either publicly or privately, or take other reasonable action short of revocation or suspension, such as placing a dentist on probation. The Board may also assess a civil fine up to $10,000 per violation. This statute clearly states that failure to meet the standards of care in the practice of dentistry constitutes grounds for license revocation. Therefore, the Board could have properly revoked Appellant's license based solely on one departure from the standard of care in this case. Cf. Gale v. State Board of Medical Examiners, 282 S.C. 474, 320 S.E.2d 35 (Ct. App. 1984) (Board of Medical Examiners had discretion by statute to invoke sanctions, and any misconduct listed in the statute could result in license revocation, suspension, restriction or limitation). Instead, the Board ordered a stay of a 5-year suspension, a $5,000 fine and that other conditions be met. This sanction is within the authority granted by statute by the General Assembly to the State Board of Dentistry.

Certainly, the sanction imposed by the Board should be guided first and foremost by its duty to protect the public and not to punish the practitioner. See Wilson v. State Board of Medical Examiners, 305 S.C. 194, 406 S.E.2d 345 (1991) (dicta), citing Levy v. Board of Registration & Discipline, 378 Mass. 519, 392 N.E.2d 1036 (1979) (revocation of physician's license is designed not to punish physician, but to protect the public); Morfesis v. Sobol, 567 N.Y.S.2d 954, 172 A.D.2d 897 (3d Dep't 1991) (disciplinary statute was enacted to protect the welfare of the general public who deal with state-licensed practitioners). In light of the Board's duty to protect the public, this tribunal cannot find that the sanction imposed on Appellant was arbitrary or capricious.

III. Was the Board's Order tainted by unlawful procedure?

Appellant complains that the Board did not issue notice of a hearing on remand, there was no opportunity for Appellant to be heard, there was no record of additional proceedings at the Board, and the participants of the Board were unknown. Appellant, however, misconstrued both this tribunal's Order of Remand dated January 21, 2000 and available case law on this point.

The January 21 Order of Remand ordered that the Board "reconsider the record and the basis for its conclusions in accordance with this Order." This Order also cited the following cases in support: Parker v. S.C. Pub. Service Comm'n, 288 S.C. 304, 342 S.E.2d 403 (1986), and Piedmont Natural Gas Co., 301 S.C. 50, 389 S.E.2d 655 (1990). In Parker, the S.C. Supreme Court expressly stated that "[u]nless this Court provides for the taking of additional evidence, no party may afford itself two bites at the apple." 288 S.C. at 307, 342 S.E.2d at 405. Furthermore, in Piedmont, the S.C. Supreme Court stated that the phrase "substantiate the record" meant to "review the evidence which was already contained in the record, not hold a new hearing for the admission of additional evidence." 389 S.C. at 54, 389 S.E.2d at 657. By analogy, these cases make it clear that an administrative agency such as the Department could not conduct another hearing to admit additional evidence, unless this tribunal had specifically ordered such a hearing. In the instant case, the taking of additional evidence was not ordered nor was any taken. Therefore, Appellant's argument that the Board's procedure denied Appellant a second opportunity to be heard must fail.

Finally, both parties submitted briefs concerning this appeal. There was no oral argument before this tribunal. ALJD Rule 39 states that: "[i]n the discretion of the Administrative Law Judge, oral argument may not be required." In this case, oral argument was not necessary. ⁽⁵⁾

IT IS THEREFORE ORDERED that the Board's decision in its Order on Remand dated April 24, 2000 is affirmed.

AND IT IS SO ORDERED.

______________________________

JOHN D. GEATHERS

Administrative Law Judge

August 30, 2000

Columbia, South Carolina

1. Appellant testified that she knew that Dr. Barbee performed cleanings, placed sealants on teeth, and took x-rays (Tr. at 109, 126). Cleanings and placing sealants are apparently within the scope of "dental hygienistry," rather than "dentistry." (Tr. at 126-27). X-rays are usually taken by persons certified to take x-rays, rather than dentists. (Tr. at 136). The Board, however, did not charge Appellant for practicing as a dental hygienist or an x-ray technician without a proper license or certificate.

2. "To permit" means "[t]o consent to formally," "[t]o give opportunity for," or "[t]o allow or admit of." Black's Law Dictionary 1160 (7th ed. 1999). The phrase "to permit," according to both common meaning and legal usage, requires knowledge, i.e., actual or constructive.

3. The former employees place the time of occurrence of Dr. Barbee's acts of dentistry prior to August 1998, when Appellant claims Dr. Barbee moved to South Carolina and began working at her office in August 1998. There is evidence, however, that Dr. Barbee worked at the office before August 1998 while she was in school. At the hearing before the Board, Dr. Barbee pled the Fifth Amendment as a defense when asked when she began working at Appellant's office. It is permissible for the fact-finder to draw an adverse inference in a civil case against a party invoking the Fifth Amendment privilege against self-incrimination. Griffith v. Griffith, 332 S.C. 630, 641, 506 S.E.2d 526, 532 (Ct. App. 1998). Accordingly, the Board could reasonably conclude that Dr. Barbee performed acts of dentistry in Appellant's office prior to August 1998.

4. Appellant argued that the testimony of the former dental assistant and hygienist was not credible, as both terminated their employment disgruntled. (Tr. at 111-114). Nevertheless, it is incumbent upon the trier of fact to assign the proper weight to the testimony. S.C. Code Ann. § 1-23-380(A)(6) (Supp. 1999). A court may set aside a decision that is arbitrary and capricious, including a decision by a fact-finder that disregarded the proper weight of the evidence. See 2 Am. Jur.2d Administrative Law § 530 (1994) (what constitutes an arbitrary and capricious act).

5. It should be noted that in the original appeal, briefs were submitted, and oral arguments were previously heard on January 12, 2000, prior to the remand of this matter to the Board.