Appeal of Schramm

• Decision Date: 06 May 1986
• Citation: 74 A.L.R.4th 957,414 N.W.2d 31
• Parties: In the Matter of the Appeal of Dr. Dwight SCHRAMM From the Final Order of the State Board of Dentistry Dated
• Court: South Dakota Supreme Court

Page 31

414 N.W.2d 31

74 A.L.R.4th 957

In the Matter of the Appeal of Dr. Dwight SCHRAMM From the

Final Order of the State Board of Dentistry Dated

May 6, 1986.

No. 15588.

Supreme Court of South Dakota.

Considered on Briefs Sept. 3, 1987.

Decided Oct. 14, 1987.

William F. Day of Day & Grossenburg, Winner, for appellant Dr. Dwight schramm.

Roger Tellinghuisen, Atty. Gen., and John W. Bastian, Asst. Atty. Gen., Pierre, for appellee State Bd. of Dentistry.

GILBERTSON, Circuit Judge.

ISSUE PRESENTED

Pursuant to SDCL Ch. 36-8, the South Dakota State Board of Dentistry suspended the license of appellant to practice dentistry in South Dakota for an indefinite period upon a finding of "unacceptable patient care due to his deliberate or negligent act or acts or failure to act." Appellant seeks reversal on the grounds that at his hearing, the Board of Dentistry had no expert testimony before it as to the appropriate standard of care required of dentists in areas similar to appellants and that he intentionally or negligently violated that standard. The Board argues that it has the expertise to make these findings, and therefore, expert testimony is unnecessary. We agree with appellant that such expert testimony is required in this case and reverse and remand.

FACTS AND PROCEDURE

Appellant is a dentist licensed to practice in the State of South Dakota by the South Dakota State Board of Dentistry (hereinafter Board). He conducts his practice in Winner, Tripp County, South Dakota. In 1985 and 1986, the Board received complaints from other dentists in the Winner area that they were seeing patients who had previously been to appellant for treatment and that this treatment was inadequate. Thereafter, the Board had these complaints investigated by one of its members who himself is a dentist. ¹ Based on his investigation, the Board ordered a hearing for April 5, 1986 to determine whether appellant should face disciplinary action for a violation of SDCL 36-6-44(3) for deliberate or negligent act or acts or failure to act.

The hearing was held after proper notice was given to appellant pursuant to SDCL Ch. 1-26. Both the Board and appellant were represented by counsel. Dr. Donald E. Nemer, Gregory, South Dakota, Dr. Charles M. Corkel, Winner, South Dakota, and Dr. Gregory R. Hermsen, Winner, South Dakota, were subpoenaed by the Board to testify and did so. Their testimony dealt with patients they had seen who had previously been treated by appellant. Thereafter, Dr. Robin Grossenburg of Yankton, South Dakota, Dr. D.C. Dendinger of Yankton, South Dakota, and Dr. V.E. Soll from Winner, South Dakota, appeared on behalf of appellant. It is undisputed that there is no expert testimony in the record as to the standard of care or expertise of dentists in the Winner area or similar towns or that the appellant negligently or intentionally violated any specific standards.

On May 6, 1986 the Board issued findings of fact, conclusions of law and its order. The Board made separate findings as to 15 patients and in 13 cases found a pattern of unacceptable patient care which included "failure to properly diagnose and plan treatment appropriate to the existing conditions and ineptness in ordinary dental skills of prosthetics, root canal surgery, operative dentistry and recognition of decay." The Board ordered that appellant's license be suspended indefinitely. ²

Appellant sought judicial review of the Board's decision in the circuit court of Tripp County. The circuit court affirmed the Board's decision finding that expert testimony was not necessary in agency hearings conducted pursuant to SDCL Ch. 1-26 and that the Board's findings were not clearly erroneous. Thereafter, appellant brought his case to this court for further review.

SCOPE OF REVIEW

The standard of review for administrative appeals (SDCL 1-26) which comes before this court has recently been clarified in Permann v. S.D. Dept. of Labor, 411 N.W.2d 113 (S.D.1987). Initially, we must determine whether the holding of the Board involves a finding of fact or conclusion of law. This distinction must be made to determine "the proper standard of review; that is, clearly erroneous as opposed to mistake of law." Permann, supra, 411 N.W.2d at 116, quoting Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 296 (S.D.1982). Questions of law such as statutory interpretation of SDCL Ch. 1-26 are reviewed by this court de novo. No deference is given to the interpretation of the trial court, nor in this case, as most cases, to agency conclusions of law. The issue before us in this matter is clearly a question of law.

STANDARD OF PROFESSIONAL COMPETENCE REQUIRED OF DENTISTS

Since the Board found appellant to have negligently performed patient care, a preliminary inquiry to review that decision is to determine the standard of care he supposedly violated.

SDCL 36-6-8.4 states as follows:

The board of dentistry shall:

(1) Through its policies and activities, by rule establish standards for and promote the safe and qualified practice of dentistry....

(3) By rule, establish educational training and competency standards governing the examination and practice of practitioners under this chapter....

Despite this legislative authorization to set state-wide standards of competence for the practice of dentistry, the rules promulgated by the Board pursuant to this chapter fail to contain any such standard or standards. Neither party has cited us to any other statutory or administrative definitions concerning the minimum requirements of competence for the practice of dentistry.

Therefore, it would appear that the sole standard in existence is that which is used in tort actions. The same rule of law applies to all professions. Lenius v. King, 294 N.W.2d 912 (S.D.1980), Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D.1986).

In performing professional services for a [patient], a [dentist] has the duty to have that degree of learning and skill ordinarily possessed by [dentists] of good standing engaged in the same type of practice in the same or a similar locality.

It is his further duty to see that care and skill ordinarily exercised in like cases by members in good standing of his profession engaged in the same line of practice in the same or similar locality under similar circumstances, and to be diligent in an effort to accomplish the purpose for which he is employed. A failure to perform any such duty is negligence.

Lenius at 913. See also S.D. Pattern Jury Instruction 105.01. For the finder of fact, the issue then becomes whether the professional deviated from this required standard of care. Magbuhat, supra.

ARE EXPERTS REQUIRED TO ESTABLISH THE STANDARD OF CARE AND

WHETHER IT WAS VIOLATED?

In deciding this issue, the court is called upon to balance two sets of well established legal principles. It is beyond argument that the State of South Dakota has a legitimate interest for the protection of its citizens to regulate the practice of dentistry, including licensing and supervisory powers which naturally must include the power to discipline or exclude the unqualified. Semler v. Oregon Bd. of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086 (1935). "In addition to its general interest in protecting consumers and regulating commercial transactions, the state bears a special responsibility for maintaining standards among members of the licensed professions." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 460, 98 S.Ct. 1912, 1920, 56 L.Ed.2d 444, 456 (1978).

The purpose of disciplinary proceedings and suspensions is not to punish the professional but is rather to "protect the public from further wrongdoing." Matter of Voorhees, 294 N.W.2d 646, 647 (S.D.1980).

On the other hand, it is also well established that one who has secured a license to practice dentistry has a property right in that license which cannot be taken from him without due process of law. Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959); Willner v. Committee on Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224 (1963); Farney v. Anderson, 56 Ill.App.3d 677, 14 Ill.Dec. 346, 372 N.E.2d 151 (1978); Hake v. Ark. Med. Bd., 237 Ark. 506, 374 S.W.2d 173 (1964); c.f. Lee v. South Dakota Department of Health, 411 N.W.2d 108, (S.D.1987).

The formality and procedural requisites of a hearing to address the issue of professional negligence and misconduct depends on the nature of the subsequent proceedings and the importance of the interests involved. Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985), Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). In this matter, the agency hearing is the first and only time at which a de novo factual determination of the dentist's competence will be made. Further the seriousness of the outcome of the hearing on the dentist's right to continue to practice his profession is obvious:

It has been repeatedly held in this state that the revocation of a license of a professional man carries with it dire consequences. It not only involves necessarily disgrace and humiliation, but it means the end of his professional career. In a proceeding so serious, due process of law requires a definite charge, adequate notice and a full, fair and impartial hearing.

Smith v. Dept. of Registration, 412 Ill. 332, 106 N.E.2d 722, 728 (1952).

A majority of the courts that have addressed this issue have required expert testimony to establish the standard of care to which the professional is held and whether that professional's conduct fell below that standard. Farney, supra; Hake, supra; Medical Licensing Bd. of Indiana v. Ward, 449 N.E.2d 1129, 1141 (Ind.App.1983); Dailey v. North Carolina St. Bd. of Dental Exam., 309 N.C. 710, 309 S.E.2d 219 (1983); Franz v. Bd. of Med. Quality Assurance, 31 Cal.3d 124, 181 Cal.Rptr. 732, 642 P.2d 792 (1982); Arthurs v. Bd. of Registration, 383 Mass. 299, 418 N.E.2d 1236 (1981); Dotson v....