ORDERS:
ORDER
REVERSED
This is an appeal of Respondent's November 30, 1999 Order which issued a private reprimand to the Appellant. Counsel
presented oral argument on May 24, 2000.
I. FACTUAL BACKGROUND
This action was commenced by the filing of a Formal Accusation and Notice of Hearing on July 15, 1999 with the State
Board of Dentistry (Board). The Accusation alleged that Appellant had violated S.C. Code Ann. §40-15-85, § 40-15-90(A)(14) and (15), and Regulation 39-11(1-F). It was alleged that the Appellant failed to provide "direct supervision" of
his hygienist. In its Final Order of November 30, 1999, the Board found that the Appellant had violated §40-15-85 and §
40-15-190(15), and imposed a private reprimand on the Appellant.
The Board determined in its Final Order that Appellant had first seen Carolyn Lucas in October 1987, after she was referred
by her general dentist for periodontic evaluation. Appellant continued to treat Lucas until 1998, alternating visits with her
general dentist so that both Appellant and her general dentist saw her twice a year. On August 20, 1998, Lucas came to
Appellant's office for her regularly scheduled treatment.
Specifically, the Board found that during this visit, a dental hygienist on the Appellant's staff cleaned and probed Lucas'
teeth. Appellant was performing an implant and was not immediately available to check Lucas. Lucas waited between 15-30
minutes and then left. She was not checked by Appellant before leaving. The Board found that Appellant had failed to
provide "direct supervision" of his hygienist and did not evaluate the performance of the dental auxiliary.
I. STANDARD OF REVIEW
Jurisdiction on appeal is vested in the Administrative Law Judge Division pursuant to the Administrative Procedures Act
(APA), specifically S.C. Code Ann. §§ 1-23-600(D) (Supp. 1999) and S.C. Code Ann. 40-15-200 (Supp. 1999). On appeal
to the Division, the standard of review is limited to the record presented. An Administrative Law Judge may not substitute
her judgment for that of the agency unless the agency's determination is affected by error of law or is clearly erroneous in
view of the reliable, probative, and substantial evidence in the whole record. S.C. Code Ann. § 1-23-380(A)(6) (Supp.
1999); Lark v. Bi-Lo, Inc., 276 S.C. 130, 276 S.E.2d 304 (1981). 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). 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 Finance Comm'n, 318 S.C. 198, 456 S.E.2d 892 (1995).
II. STATEMENT OF ISSUES ON APPEAL
A. Was the Dental Board acting within its discretion in interpreting the
"direct supervision" requirement in S.C. Code Ann. § 40-15-85 (Supp.
1999) to require an oral exam of a patient?
B. Was the sanction imposed by the Board arbitrary and capricious?
III. ANALYSIS
A. Was the Dental Board Acting Within Its Discretion In Interpreting the
"Direct Supervision" Requirement In S.C. Code Ann. § 40-15-85 (Supp. 1999) To Require An Oral Exam Of a
Patient?
It is well settled law in South Carolina that an administrative agency's construction of its statutes will generally be respected.
"The construction of a statute by the agency charged with its administration will be accorded the most respectful
consideration and will not be overruled absent compelling reasons." Dunton v. South Carolina Board of Examiners in
Optometry, 291 S.C. 221, 353 S.E.2d 132 (1987). In this case, S.C. Code Ann. § 40-15-85 (Supp. 1999) is the statute in
question. The statute in defining "direct supervision" states that
"the dentist is in the dental office, personally diagnoses the condition to be treated,
personally authorizes the procedure and before the dismissal of the patient, evaluates the
performance of the dental auxiliary. Such a requirement does not mandate that the dentist be present at all times but he
must be on the premises actually involved in
supervision and control." S.C. Code Ann. § 40-15-85 (Supp. 1999).
The term "dental auxiliary" is not defined anywhere in the dental practice act or regulations. Further, dental hygienists
working in the public health system are allowed to perform their duties under the direction and control of, although not in the
presence of, the State Director of Public Health Dentistry. S.C. Code Ann. § 40-15-110 (Supp. 1999). Appellant stated that
he had queried his hygienist about the patient's condition while he was performing the surgery which rendered him
unavailable to check Lucas. The Board stated that it did not consider this to be "direct supervision." The Board found that
"Evaluation of intra-oral procedures by a dental auxiliary requires an oral examination by the dentist providing direct
supervision." While there is no mention of an oral exam in § 40-15-85, nor is the term "dental auxiliary" defined, I find that
the Board was within its discretion in determining that an oral exam is required under § 40-15-85. Despite the less than clear
language present in the statute, I find that when the statutory scheme is looked at as a whole, the Board's interpretation is
reasonable.
B. Was The Sanction Imposed By The Board Arbitrary and Capricious?
The Administrative Law Judge Division must abstain from overturning an agency's decision unless it is affected by errors of
law or is clearly erroneous in light of the reliable, probative, and substantial evidence on the record. Grant v. S.C. Coastal
Council, 319 S.C. 348, 461 S.E.2d 388 (1995). If reasonable minds can draw two inconsistent conclusions, the
administrative agency's decision can still be supported by substantial evidence. Ellis v. Spartan Mills, 276 S.C. 216, 277
S.E.2d 590 (1981). To be disturbed, the findings of the agency must be arbitrary and capricious as a matter of law. Welch
v. Public Service Commission, 301 S.C. 259, 391 S.E.2d 556 (1990).
In the present case, I find that the action of the agency in reprimanding Appellant was arbitrary and capricious and not
supported by substantial evidence. The Board found that the Appellant had violated § 40-15-85 (Supp. 1999) by not
performing an oral exam on Lucas after she had her teeth cleaned. However, Appellant was involved in surgery at the time
and was not able to stop the invasive procedure to go and examine Lucas. Further, Lucas, who suffers from depression and
bi-polar disorder, left before Appellant could finish his surgery and check her. There was a factual dispute about exactly how
long Lucas waited, but the Board found that it was between fifteen and thirty minutes. Lucas was offered the opportunity to
return at a later time for the dentist to check her, but she never returned.
The evidence reflected that Appellant had treated Lucas for eleven years, and the Board found that this was the only time
such an instance had occurred. Also, the dentist who treated Lucas after she left Appellant's care found that the standard of
care had been excellent. The evidence also reflected that this was a rare occurrence in Appellant's practice, and that no harm
came to Lucas because of it. Appellant presented testimony by three witnesses, including a past president of the American
Dental Association and a past president of the State Dental Board, that occasionally patients will get up and leave before the
dentist can get to them. The witnesses stated that, while not an everyday occurrence, this situation had happened to them.
The testimony indicated that in such a situation, the dentist must engage in a balancing test. If the primary patient is in a
more critical position, the dentist should remain with that patient. No testimony was offered to rebut this.
The action of the Board in imposing the sanction was arbitrary and capricious. To conform to the strict technical definition
adopted by the Board would have meant that the Appellant would have had to leave a patient on whom he was performing
invasive surgery in order to go check the cleaning job of his hygienist. Further, although the exact time is disputed, Lucas
only waited between fifteen and thirty minutes before leaving. It is unduly harsh to reprimand Appellant, who by all accounts
is an excellent periodontist with no prior complaints to the Board, for Lucas' refusal to wait until Appellant could reach a
stopping point in his surgery. The substantial evidence in the record reveals no reason for sanctioning Appellant. The Order
of the Board ignores the substantial evidence presented and interprets the law in an exceedingly narrow and mechanical
fashion that is in error.
This case is a prime example of the doctrine of de minimis non curat lex, which is a part of the common law in South
Carolina. See, Moseley v. Welch, 218 S.C. 242, 62 S.E.2d 313 (1950). "The venerable maxim de minimis non curat lex
('the law cares not for trifles') is part of the established background of legal principles against which all enactments are
adopted, and which all enactments (absent contrary indication) are deemed to accept." Wisconsin Department of Revenue v.
William Wrigley, Jr., Co., 112 S.Ct. 2447 (1992). This principle has historically been used to avoid litigation of trivial or
unimportant matters. It has also evolved as a way to dispense with criminal cases that are inconsequential or outside conduct
envisaged by the legislature. 68 A.L.R.5th 299. In this case, it is hard to believe that the legislature intended for a dentist to
be sanctioned for failing to check the work of his dental hygienist while he was performing surgery and the patient refused to
wait. To impose a sanction where events were beyond the dentist's control, even though the statute was technically violated,
is manifestly unjust. This is particularly so when one considers that the Board did not find that the Appellant violated the
standard of care. The Final Order of the Board is clearly unsupported by substantial evidence, is arbitrary and capricious,
and should be reversed.
IV. ORDER
The imposition of a private reprimand by the Board was an arbitrary and capricious action. Therefore, the Board's Order
reprimanding the Appellant, dated November 30, 1999, is REVERSED.
IT IS SO ORDERED.
CAROLYN C. MATTHEWS
Administrative Law Judge
June 19, 2000
Columbia, South Carolina
|
