Braun v. Board of Dental Examiners

Decision Date05 September 1997
Docket NumberNo. 96-105,96-105
Citation702 A.2d 124,167 Vt. 110
PartiesPeter L. BRAUN, D.D.S. v. BOARD OF DENTAL EXAMINERS.
CourtVermont Supreme Court

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 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 (1997). This Court may not substitute its own judgment for that of the Board. See Schneider v. Vermont Employment Sec. Bd., 133 Vt. 187, 190, 333 A.2d 104, 106 (1975). Thus, we are concerned with the reasonableness of the Board's decision, not how we would have decided the case. See Texas State Bd. of Dental Examiners v. Sizemore, 759 S.W.2d 114, 117 (Tex.1988), cert. denied, 490 U.S. 1080, 109 S.Ct. 2100, 104 L.Ed.2d 662 (1989); cf. Homoly, 479 S.E.2d at 218 (board composed of licensed dental professionals best qualified to judge whether petitioner violated standard of care).

Upon review of the record, we conclude that the Board could reasonably find that Dr. Braun's behavior rose to the level of gross negligence. In arguing that the evidence was inadequate to support the finding, Dr. Braun focuses primarily on a statement by the State's expert that an adjustment to a patient's denture constitutes a "minor version" of diagnosis. It is undisputed, however, that in the first month following removal of her teeth, H.D. returned twice for appointments, at least once complaining of pain, and both times Dr. Braun failed to meet with or examine his patient. Instead, he delegated this task to his dental assistant. On the first visit, H.D. complained of pain and the assistant, after removing the dentures, conferred with Dr. Braun in another area of the facility, passing along his observation that H.D.'s stitches had not yet been removed. At Dr. Braun's direction, the assistant modified the dentures on a lathe to remove an undercut. The same procedure occurred on the second visit, with patient contact solely between H.D. and the dental assistant, followed by consultation between the dental assistant and Dr. Braun in another part of the building. Not until more than a month following the extraction, when H.D. returned for an appointment again complaining of pain, was she examined by Dr. Braun. On the fourth visit, H.D.--still complaining of pain--was again seen only by the dental assistant. Although the patient came to Dr. Braun's office several times complaining of pain following the removal of twenty-three teeth, on only one occasion was she examined by him to determine the cause of her pain and discomfort.

In addition to the undisputed facts underlying the case, the Board heard expert testimony on the standard of care. The State's expert testified that H.D.'s sore spots could have been caused by a number of problems other than the denture, including osteonecrosis of the bone, a root tip, an abscess ulcer, or oral cancer, and that a technician is not trained to recognize such conditions. In effect, the expert stated, Dr. Braun allowed the assistant to determine the cause of the problem, and there was no way for Dr. Braun to ascertain whether that determination was correct. The expert testified that allowing an assistant to determine the cause of pain and the need to modify a denture, along with adjusting the denture itself, violates the statutory standard of care.

As a body composed primarily of dental professionals, the Board has the power to apply its own expertise in evaluating the evidence. See Briggs v. State Employees Retirement Comm'n, 210 Conn. 214, 554 A.2d 292, 294-95 (1989) (agency composed of physicians entitled to rely on its own expertise within area of professional competence). We conclude that there was sufficient evidence for the Board to find that Dr. Braun's failure to examine his patient after surgery, despite repeated complaints of discomfort, and instead, allowing his assistant to examine the patient, determine the nature of the problem, and modify her dentures, amounted to a gross violation of the...

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