Braun v. Board of Dental Examiners, 96-105

• Citation: 702 A.2d 124, 167 Vt. 110
• Case Date: September 05, 1997
• Court: United States State Supreme Court of Vermont

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702 A.2d 124 167 Vt. 110 Peter L. BRAUN, D.D.S.
v.
BOARD OF DENTAL EXAMINERS. No. 96-105. Supreme Court of Vermont. Sept. 5, 1997.

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David A. Otterman of Otterman and Allen, P.C., Barre, for appellant.

Wendy A. Burroughs, Assistant Attorney General, Waterbury, for appellee.

Before GIBSON, DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.), Specially Assigned.

GIBSON, Justice.

Peter Braun, a licensed dentist, appeals the Washington Superior Court's order affirming disciplinary action imposed by the Vermont Board of Dental Examiners. On appeal, Dr. Braun contends (1) that the evidence before the Board was insufficient to support its finding that his actions constituted a gross failure to uphold the standard of care, (2) that the actions for which he was disciplined were authorized by statute and regulation, (3) that he was given inadequate notice of the violations for which he was disciplined, and (4) that the statute is unconstitutionally vague. We affirm.

The basic facts are not in dispute. Dr. Braun has a dental practice where he provides general dental care and runs a lab in which dentures are manufactured. In July 1992, patient H.D. met with Dr. Braun to talk about having her remaining twenty-three teeth removed and replaced with dentures. After examining the patient, Dr. Braun directed his dental assistant (a person authorized by statute to assist a licensed dentist) to take impressions of the patient's teeth to make temporary, or "immediate," dentures. Approximately one month later, all of H.D.'s teeth were removed by an oral and maxillofacial surgeon. The surgeon inserted the immediate dentures from Dr. Braun on the day H.D.'s teeth were removed.

On August 14, three days after the extraction of her teeth, H.D. returned to Dr. Braun's office, complaining of sore spots. She was seen by the dental assistant, who removed her dentures and observed that her stitches had not yet been removed. The assistant then discussed the situation with Dr. Braun separately, who examined the dentures and directed his assistant to make an

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alteration. The assistant did so and returned the dentures to H.D. H.D. left the office without being examined by Dr. Braun. On August 26, one week after the oral surgeon removed her stitches, H.D. returned to Dr. Braun for another appointment. Again the patient was seen only by the dental assistant. The assistant conferred with Dr. Braun, who directed him to perform a soft-tissue relining.

On September 15, more than one month after H.D.'s teeth were removed, she returned for another appointment, complaining of discomfort. She was seen by Dr. Braun on this visit, who examined her and scheduled an additional relining. H.D. returned on October 29, still complaining of discomfort. She was seen by the dental assistant, and her dentures were again altered after the assistant consulted with Dr. Braun. H.D. left without being examined by Dr. Braun.

H.D. subsequently filed a complaint. The State brought charges of unprofessional conduct, and following a hearing, the Board of Dental Examiners found that Dr. Braun had violated the statutory standard of care and ordered him to enroll in a continuing-education program. See 26 V.S.A. §§ 767, 809(a) (authorizing Board to investigate complaints and discipline licensees). Pursuant to 3 V.S.A. § 130a(a), (b), Dr. Braun appealed the Board's decision to the Director of the Office of Professional Regulation, which affirmed the order. Dr. Braun then appealed to the Washington Superior Court, see 3 V.S.A. § 130a(c), which reviewed the case on the basis of the record created by the Board and affirmed the decision. This appeal followed.

I.

Dr. Braun first argues that the evidence before the Board was insufficient to support its finding and conclusion that his treatment of H.D. constituted a gross failure to uphold the statutory standard of care. That standard allows the Board to discipline a dentist for the:

gross failure to use and exercise on a particular occasion or the failure to use and exercise on repeated occasions, that degree of care, skill and proficiency which is commonly exercised by the ordinary skillful, careful and prudent dentist ... engaged in similar practice under the same or similar conditions, whether or not actual injury to a patient has occurred.

26 V.S.A. § 809(a)(21). We have stressed that grossly negligent conduct is more than a mere error of judgment, momentary inattention, or loss of presence of mind. Hardingham v. United Counseling Serv. of Bennington County, Inc., 164 Vt. 478, 481, 672 A.2d 480, 482 (1995). Rather, it is the failure to exercise even a slight degree of care and an indifference to the duty owed. Id.; see also Rivard v. Roy, 124 Vt. 32, 35, 196 A.2d 497, 500 (1963) (defining standard in similar terms under guest-passenger statute, since repealed). We have acknowledged, however, that there is no clear dividing line between ordinary and gross negligence; whether certain behavior was grossly negligent hinges on the particular circumstances of the case. Hardingham, 164 Vt. at 481, 672 A.2d at 483. Because such a finding requires applying the facts to a reasonableness standard, we defer to the fact finder's ability to determine whether particular behavior rose to the level of gross negligence. See id. at 487, 672 A.2d at 486 (Dooley, J., dissenting).

Additional deference is owed here because the action arose out of an administrative proceeding in which a professional's conduct was evaluated by a group of his peers. We will affirm the Board's findings as long as they are supported by substantial evidence, and its conclusions if rationally derived from the findings and based on a correct interpretation of the law. See In re Southview Assocs., 153 Vt. 171, 177-78, 569 A.2d 501, 504 (1989). Evidence is substantial if, in looking at the whole record, see Clark v. Weinberger, 389 F.Supp. 1168, 1169 (D.Vt.1974), aff'd, 511 F.2d 1390 (2d Cir.1975), it is relevant and a reasonable person could accept it as adequate to support the particular conclusion. In re McShinsky, 153 Vt. 586, 589, 572 A.2d 916, 918-19 (1990); see Livingston v. Arkansas State Medical Bd., 288 Ark. 1, 701 S.W.2d 361, 363 (1986); Homoly v. North Carolina State Bd. of Dental Examiners, 125 N.C.App. 127, 479 S.E.2d 215, 217

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(1997). This Court may not substitute its own judgment for that of the Board. See Schneider v. Vermont Employment Sec. Bd., 133 Vt. 187,...