Appeal of Beyer

• Decision Date: 05 November 1982
• Docket Number: No. 81-174,81-174
• Citation: 122 N.H. 934,453 A.2d 834
• Parties: Appeal of Dr. Werner BEYER (New Hampshire Board of Dental Examiners).
• Court: New Hampshire Supreme Court

Page 834

453 A.2d 834

122 N.H. 934

Appeal of Dr. Werner BEYER (New Hampshire Board of Dental Examiners).

No. 81-174.

Supreme Court of New Hampshire.

Nov. 5, 1982.

Holland & Aivalikles, Nashua (Francis G. Holland, Nashua, on brief and orally), for Dr. Werner Beyer.

Gregory H. Smith, Atty. Gen. (Jeffrey R. Cohen, Asst. Atty. Gen., on brief and orally), for the State.

KING, Chief Justice.

Dr. Werner Beyer, a dentist in Nashua, New Hampshire, appeals a decision by the New Hampshire Board of Dental Examiners(board) to suspend his license to practice for thirty days and require him to attend continuing education classes.We affirm.

On August 29, 1978, James V. Bowles and Judith H. Bowles filed a complaint against Dr. Beyer with the New Hampshire Dental Society (society).Their complaint alleged that Dr. Beyer had negligently placed an implant in their daughter's mouth and had failed to warn them of the risks of the implant.Because Dr. Beyer refused to participate in the society's mediation procedure, the Bowles referred their complaint to the board.

The board scheduled a hearing for September 5, 1979.Dr. Beyer requested that the hearing be conducted as a pre-hearing conference, and his request was granted.On December 6, 1979, the board held its first evidentiary hearing, at which both Dr. Beyer and the Bowles were present with their respective counsel.

On December 10, 1979, Dr. Beyer filed a petition in the United States District Court for the District of New Hampshire seeking a determination that the complaint and the board's procedure had violated his constitutional right to due process.Additionally the petition sought an injunction prohibiting the board from proceeding until a malpractice action which was pending in superior court, filed by the Bowles against Dr. Beyer, was resolved.After an evidentiary hearing and specific findings, the Federal District Court(Devine, C.J.) denied Dr. Beyer's petition and granted summary judgment to the board.After the district court hearing one board member recused himself.

The board then continued to conduct hearings on the Bowles' complaint until they sought to withdraw their complaint.The board allowed the Bowles to withdraw, but decided to proceed with the hearings on its own.The board scheduled a hearing for July 7, 1980.Counsel for Dr. Beyer sent a motion for a continuance to the board on July 2, 1980, because he was to be involved in a trial in Grafton County on the day of the hearing.The board did not receive the motion for a continuance prior to the hearing and proceeded without the presence of Dr. Beyer and his counsel.On July 9, 1980, the board issued its decision, holding that Dr. Beyer had placed an implant in Judith Bowles' mouth which damaged the roots of the tooth adjacent to the implant and that the implant was improperly contoured causing severe periodontal damage.The board suspended Dr. Beyer's license for one year, but reduced the suspension to one month on the condition that Dr. Beyer attend four continuing education classes.

After the board's decision, Dr. Beyer again sought injunctive relief in federal district court.After that court denied relief, Dr. Beyer sought the same relief in superior court.Although the Superior Court(Goode, J.) granted Dr. Beyer's request for an injunction, this court granted a writ of prohibition.

Dr. Beyer filed a motion with the board either to set aside the decision of the board because he and counsel had been unable to attend the July 7, 1980 hearing, or to authorize a rehearing.The board granted Dr. Beyer a rehearing and permitted him to inquire into the possible prejudice of the board members by deposing them.Subsequently, the board issued its final order which reaffirmed the terms of the suspension.This court stayed the suspension pending the outcome of this appeal by Dr. Beyer.

We begin our analysis by noting that the standard of review in this case is very narrow.We must uphold the board's decision unless it is unreasonable or based on an error of law.RSA 541:13;Appeal of Denise Peirce and Christopher Rice, 122 N.H. 762, ---, 451 A.2d 363, 365(1982).Dr. Beyer has raised a multiciplicity of detailed, repetitive and tendentious arguments, many of which are discussed in several different contexts.We discourage the duplication of arguments, and we will confine our review to what we have determined to be his basic arguments.SeeProvencal v. Provencal, 122 N.H. 793, ---, 451 A.2d 374, 376(1982);see alsoAmerican Bd. of Trade, Inc. v. Dun & Bradstreet, 122 N.H. 344, ---, 444 A.2d 550, 551(1982).

Many of Dr. Beyer's arguments were rejected by the federal district court.These include the claims: (1) that a single act of malpractice does not constitute a basis for discipline by the board; (2) that the board's application of the 1979amendments to RSA chapter 317-A constituted a retrospective statute; (3) that the Bowles' complaint was defective; and (4) that the board improperly failed to schedule a preliminary hearing.Dr. Beyer is now collaterally estopped from relitigating these issues.Bricker v. Crane, 118 N.H. 249, 253, 387 A.2d 321, 323(1978).For this reason, we will not consider any issues already determined by the federal district court.

Dr. Beyer argues that the board accepted the Bowles' complaint because he was not a member of the society, and that this motivation for acceptance was improper.In doing this, Dr. Beyer misconstrues the testimony given by one board member in federal court.While it may be true that if he had agreed to mediation by the society, the parties might have reached an agreement and the Bowles might never have complained to the board, this fact does not indicate wrongful acceptance of the complaint by the board.The board was required to accept the complaint pursuant to its authority under RSA chapter 317-A.SeeRSA 317-A:17 (Supp.1981) and RSA 317-A:18 (Supp.1981)(amended 1981).

Dr. Beyer also attacks the participation of the public and dental hygiene members of the board in his hearing.He argues that the legislature did not intend the public and dental hygiene members to participate in hearings in which a dentist's license is being challenged.He relies on provisions of the statute that prohibit the public and dental hygiene members from participating in the examination of applicants for the clinical practice of dentistry.SeeRSA 317-A:4(a) and (b)(Supp.1981)(amended 1981).In the provisions dealing with license suspensions and revocations, RSA 317-A:17 (Supp.1981), the legislature made no similar prohibition regarding the participation of the public and dental hygiene members.It is clear that the legislature knew how to limit the involvement of board members in particular types of proceedings.If it had intended that the public and dental hygiene members not participate when a dentist's license was being challenged, it would have expressly provided for such exclusion.

Dr. Beyer...