Bernard v. Board of Dental Examiners

• Jurisdiction: Oregon
• Parties: Lawrence BERNARD, Respondent, v. Oregon State BOARD OF DENTAL EXAMINERS, Appellant.
• Citation: Bernard v. Board of Dental Examiners, 465 P.2d 917, 2 Or.App. 22 (Or. App. 1970)
• Court: Oregon Court of Appeals
• Decision Date: 05 March 1970

Page 917

465 P.2d 917

2 Or.App. 22

Lawrence BERNARD, Respondent, v. Oregon State BOARD OF DENTAL EXAMINERS, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Sept. 19, 1969.

Decided March 5, 1970.

Robert M. Christ, Executive Secretary, Oregon State Bd. of Dental Examiners, Portland, argued the cause for appellant. On the brief were Robert Y. Thornton, Atty. Gen., and Louis S. Bonney, Asst. Atty. Gen., Salem, and Alex L. Parks, Portland.

Robert D. Steinmetz, Portland, argued the cause for respondent. With him on the brief were Rives & Schwab and Herbert M. Schwab, Portland.

Before LANGTRY, P.J., and FOLEY, FORT and BRANCHFIELD, JJ.

FORT, Judge.

The State Board of Dental Examiners brought charges of fraud and misrepresentation in obtaining fees for dental services against respondent, a licensed practicing dentist in Oregon.

The charges arose out of services performed for three patients. We note at the outset that the state does not contend that Dr. Bernard failed in any respect to perform the work which he contracted to do for each of these patients. It does not accuse this dentist of performing work not professionally necessary, nor does it claim that any of the work he did or caused to have done for his patients was done other than in full compliance with accepted dental practices.

The 'fraud and misrepresentation' alleged relates to a matter collateral to a dentist's professional activity--namely, to the payment of his fees. This aspect of the doctor-patient relationship is one normally governed by the law of contracts. No claim is made that any of his charges were excessive, were unearned, or were not owed to Dr. Bernard by the patient in question. It is conceded that he did all the work for which he charged. No breach of the contract between himself and his patient is claimed.

Since this matter was tried in the court below on the assumption that the charges frame a justiciable issue under ORS 679.140(2)(b), we will so treat it. In so doing we do not therefore decide whether the legislature intended to regulate more than the doctor-patient relationship by that provision or whether it intended thereby to extend appellant's regulatory powers to include supervision over the dentist in his relationship with third parties with whom he has no contractual relationship, such as the patient's insurance company.

All three patients were members of the Food & Drug Clerks Union. This union entered into a contract of insurance with the Investors Insurance Corporation on behalf of its members for specified dental work ordered by eligible members of the union from licensed dentists of their own choosing.

The arrangement is described in respondent's brief:

'* * * Persons eligible to receive benefits are required to complete a claim form furnished by Investors Insurance Corporation. The form contains two parts: Part I is a certification to be signed by the employee. Part II contains a certification to be signed by the attending dentist, certifying as to the performance of services in accordance with a chart which lists the nature of the service, the date performed and the fee claimed by the dentist for each type of service. The form requires that it be sent to Mr. Henry Spivak, the Administrator of the Plan.

'The procedure requires that Mr. Heny Spivak verify the eligibility of the employee. To be eligible the employee must be a member of the union, and be employed by a participating employer and actually working for the employer at the time the services were performed. If the employee is eligible, Mr. Spivak initials the claim and sends it to the insurance company for payment. Investors Insurance Corporation examines the completed claim and establishes the fee to be paid for each type of service listed on the chart found in Part II of the form.

'The claim form provides that no assignment of benefits shall be valid. However, the Board of Trustees of the Dental Trust approved of a plan whereby payment was made directly to the attending dentist when the employee had assigned the benefits to the dentist and the assignment was sent in with the claim form. The benefits payable under the claims of Opal Millard, Joan Stewart and Marcus Hempel were so paid to the plaintiff.'

It is uncontradicted that this was a new insurance company-labor-management program. It went into effect March 1, 1965; an additional portion of the union's members became covered on June 1, 1965. None of the agreements between these parties setting forth rights, duties and legal relationships among them are in evidence. The rights of each of Dr. Bernard's patients are defined by these. Dr. Bernard was not a party to any of these. There is nothing in the record to show he knew or had any right to know their content or their meaning.

In the course of the proceedings before the board, the 'accused,' as the board's brief refers to Dr. Bernard, by timely motion sought to take the deposition of Mr. L. M. Elkins, the chief investigator for appellant, who under oath had verified the complaint against Dr. Bernard. The motion also sought an order directing Mr. Elkins to produce 'for the purposes of inspection and copy all of the books, papers, accounts, documents and testimony pertaining to the matters under investigation,' and further for those of the foregoing 'to be used directly or indirectly at the time of the hearing set forth based upon the accusations and charges pending against Dr. Lawrence Bernard Herein * * *.'

The appellant denied the foregoing motion in its entirety on the ground that 'There is no statutory or administrative-rule authority for the allowance of such a motion * * *.'

The board referred the matter to its hearing examiner. Three volumes of testimony and numerous exhibits comprise that record. The hearing examiner entered as his Conclusions of Law:

'The accused wilfully and knowingly, by fraud and misrepresentation, presented claims for dental services rendered to said Marcus W. Hempel, Opal E. Millard and Joan A. Stewart, to the Administrator of the Food and Drug Clerks Dental Plan, with respect to services rendered on dates therein alleged, and by means of said false representations did obtain the sum of $1,123.20 from the Investors Insurance Company, the insurance company providing insurance coverage for the dental plan, contrary to ORS 679.140 2(b).'

Thereafter, the board, based upon the Findings and Conclusions of the hearing examiner, entered its order:

'(1) That the Board approves and does hereby adopt the Findings and Conclusions of the Hearings Examiner in their entirety;

'(2) That the accused shall be and he hereby is found guilty as charged on all counts set forth in the Charges filed herein; and

'(3) That his license be and the same hereby is revoked * * *.'

Dr. Bernard then sought judicial review of this order. The circuit court, after hearing, entered its Findings of Fact and Conclusions of Law. So far as relevant to the issues here, these were:

'1. The charges in respect to plaintiff's alleged professional misconduct with Opal Millard and Joan A. Stewart are unsupported in the record by any substantial legal evidence. The defendant Board's action imposing sanctions for this alleged misconduct was erroneous and is therefore set aside.

'2. * * * (The board concedes that the trial court correctly reversed its order here involved.)

'3. * * * (The board concedes that the trial court correctly reversed its order here involved.)

'4. Plaintiff was entitled to take the deposition of Leslie M. Elkins, Chief Investigator of the defendant Board in accordance with plaintiff's motion. The defendant Board's action in denying the plaintiff's motion to take Mr. Elkins' deposition deprived plaintiff of the opportunity to fully prepare his defense in the proceedings below. Therefore, the Board's action in this case is reversed and remanded for further proceedings not inconsistent with this decree.'

and by its decree provided:

'1. That the said other entered by the defendant Oregon State Board of Dental Examiners on October 29, 1966, be and the same is hereby in all respects reversed and remanded for further proceedings not inconsistent with this decree.

'2. That the license to practice dentistry within the State of Oregon heretofore issued to the plaintiff is hereby ordered reinstated.'

The board appeals from the above, asserting the trial court erred in setting aside its findings of fraud and misrepresentation concerning Mrs. Millard and Mrs. Stewart, and in remanding the case to allow the taking of the deposition of its chief investigator, the complainant herein.

The charge of fraud and misrepresentation concerning the obtaining of a fee for services rendered to Marcus Hempel was not directly ruled on by the trial court. Instead it sent the matter back to the board to comply with the court's order to allow the taking of the deposition of Mr. Elkins concerning this matter. We agree with the trial court that Mr. Bernard had the clear right to take the deposition of the complaining witness, Mr. Elkins, and that it was error for the appellant to deny him this right.

The appellant contends that because the motion also sought therein documents, some of which he might not be entitled to, whether because of a valid privilege, because of possible irrelevance to the issues involved, because of claim as 'work products,' or other appropriate reason, its denial was proper.

The board further contends the motion to take Mr. Elkins's deposition was properly denied because it was utterly devoid of any 'proper showing of general relevance or reasonable scope of the evidence sought' as required by the board's own Model Rules of Administrative Procedure.

Mr. Elkins was the complainant who under oath had accused Dr. Bernard of obtaining fees by fraud and misrepresentation in each of the three specific cases alleged. As such he was the complaining witness. He swore in that complaint that he was the board's chief...