D'Amour v. Board of Registration in Dentistry

• Decision Date: 19 March 1991
• Citation: 567 N.E.2d 1226,409 Mass. 572
• Parties: Robert D'AMOUR v. BOARD OF REGISTRATION IN DENTISTRY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1226

567 N.E.2d 1226

409 Mass. 572

Robert D'AMOUR v. BOARD OF REGISTRATION IN DENTISTRY.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Dec. 4, 1990.

Decided March 19, 1991.

Thomas A. Kenefick, III (Barbara J. Sweeney, Springfield, with him), for plaintiff.

Maureen Brodoff, Asst. Atty. Gen., for Board of Registration in Dentistry.

Before LIACOS, C.J., and WILKINS, ABRAMS and O'CONNOR, JJ.

LIACOS, Chief Justice.

On October 18, 1989, the Board of Registration in Dentistry (board) suspended Robert D'Amour's license to practice dentistry in the Commonwealth for three years, to be followed by a probationary period of three years. The board found that D'Amour: (1) committed malpractice in failing to observe, document, and discuss a cancerous lesion inside the mouth of a seventy-nine year old patient, and in inserting dentures after observing the lesion; (2) failed adequately to inform a minor patient and her parents what they could reasonably expect from an unorthodox treatment; (3) engaged in irregular billing practices; and (4) committed gross misconduct in photographing a nude patient without a scientific or professional basis for doing so. ¹

On November 13, 1989, D'Amour appealed to a single justice of this court. G.L. c. 112, § 64 (1988 ed.). On June 27, 1990, the single justice vacated the part of the order involving the irregular billing practices. ² He affirmed the rest of the board's decision. On appeal to this court, D'Amour claims that: (1) the board deprived him of due process by failing to provide an impartial hearing; and (2) the board's order was unsupported by substantial evidence. So much of the board's order as involved the taking of nude photographs of a patient is to be vacated. We affirm the judgment of the single justice in all other respects. ³

1. Facts. Before us are the findings by the board against D'Amour which involve three different patients. We proceed to discuss the evidence submitted at the hearing.

a. JC. On April 17, 1986, JC, a seventy-nine year old man, visited his physician, Dr. Frederick Schwendenmann, complaining of a sore throat. A throat culture was performed and the result was negative. On May 2, 1986, JC visited D'Amour for the first time, and requested a new set of lower dentures. After an initial examination, D'Amour concluded that JC could not be fitted for dentures at that time because JC's gums were swollen. D'Amour wrote in his treatment notes that JC's mouth and throat were irritated, and that JC was under a physician's care for the throat condition. JC visited D'Amour three more times during the next three weeks. The dentures were inserted on May 21, 1986.

On May 19, 1986, JC visited Dr. Schwendenmann, who noticed that there was a ragged lesion across the soft palate and into the right tonsillar fossa of JC's mouth. Dr. Schwendenmann referred JC to Dr. George Charkoudian, an oral surgeon. On May 22, 1986, JC visited Dr. Charkoudian, who performed a biopsy and found the lesion to be cancerous. At the hearing, Dr. Charkoudian testified as an expert in oral maxillofacial surgery. He stated that D'Amour was negligent in failing to recognize the cancer, and in inserting the dentures without first referring JC to an oral surgeon. According to Dr. Charkoudian, the dentures inserted by D'Amour came in contact with a section of the cancerous lesion.

D'Amour testified that on May 21, 1986, the day on which the dentures were installed, he recognized the lesion as being cancerous, and that he asked JC whether he was being treated by a physician for the lesion. According to D'Amour, JC told him that he was being treated for the condition. Dr. Charles White, an expert in oncology who reviewed JC's medical records, testified that D'Amour met the standard of care when he made sure that a physician was treating JC for the lesion. Dr. White also stated that the dentures did not come in contact with the cancerous lesion, and that the insertion of the dentures did not have an impact on the cancer.

The board concluded that D'Amour's testimony that he noticed the cancerous lesion was not credible since it was not corroborated by his treatment notes. The board also found that, assuming D'Amour did observe the lesion in JC's throat, the insertion of the dentures "was conduct which fell below good and accepted dental practice standards and constituted malpractice in the practice of dentistry, in violation of G.L. c. 112, § 61 (1988 ed.)." ⁴ The board suspended D'Amour's license for six months to run concurrently with a three-year suspension imposed for another violation, see note 1, supra, and ordered him to complete a course in oral diagnosis.

b. BP. In March, 1986, BP, a fourteen year old female, was referred to D'Amour by Dr. Randall Schaetzke, a chiropractor. Dr. Schaetzke had examined BP and concluded that she had scoliosis, a curvature of the spine. On March 24, 1986, during BP's first visit to D'Amour's office, he performed a temporomandibular joint (TMJ) dysfunction screening test. According to DP, BP's mother, D'Amour told her that BP had TMJ dysfunction, and that BP's jaw disorder was affecting the muscles in her back. DP testified that D'Amour told her that he would be able to treat BP's scoliosis by placing an equilibrium appliance in BP's mouth. According to DP, D'Amour stated that he was going "to move [BP's] spine." Dr. Schaetzke testified that, after D'Amour began treating BP, D'Amour told him that BP's "spine was moving."

Dr. John Emans, an orthopedic surgeon who began treating BP in March, 1987, after BP stopped seeing D'Amour, stated in a deposition admitted in evidence that there were no appreciable changes in BP's scoliosis between January, 1986, and March, 1987. Dr. Emans also stated that there was no scientific proof that "scoliosis of the lumbar spine is altered by treatment to the temporomandibular joint." Dr. David Keith, an oral surgeon, testified that there were "differences of opinion" regarding the relationship between the treatment for TMJ disorder and scoliosis.

D'Amour testified; he denied that he told DP or BP that he would treat BP's scoliosis. D'Amour contended at the hearing that he told DP there was a possibility the TMJ treatment would have a salutary effect on BP's scoliosis. D'Amour also denied telling Dr. Schaetzke that he had succeeded in moving BP's spine.

D'Amour called two dentists to testify about the relationship between TMJ dysfunction and scoliosis. Dr. Roger Kourey testified that, when TMJ disorder is eliminated, "it also seems to help straighten out some of the advanced curvatures of the spine." Dr. Gerald Smith testified that he believed there was a "direct connection between malocclusions and spinal posture." Dr. Smith also stated that this was a "pioneering" field of dentistry, and "that future healing teams are going to see chiropractic dental people in the mainstream treating scoliosis."

The board found that D'Amour "misled BP and her parents as to the results they could reasonably expect from the treatments and inappropriately blurred the boundaries between the dental treatment rendered by [D'Amour] and the chiropractic treatment provided by Dr. Schaetzke." The board also found that D'Amour's "statements and treatment modalities created DP's reasonable belief that [D'Amour's] treatments were directed to and, in fact, had resulted in, the straightening of BP's spine." The board concluded that "[a]lthough [D'Amour's] behavior in this matter does not support a finding that he violated [G.L. c. 112, § 61] by committing malpractice in his treatment of BP, [D'Amour] failed to adequately and properly advise BP and her parents as to the 'pioneering' nature of his prescribed treatment and the results which could reasonably be expected to be obtained therefrom." As a result, the board reprimanded D'Amour.

c. LC. On October 9, 1984, LC, a thirty-one year old woman, visited D'Amour complaining of pain in her face and jaw. On October 24, 1984, after a TMJ examination, D'Amour diagnosed LC as having TMJ disorder. LC testified that D'Amour explained to her that the TMJ dysfunction was probably related to a pinched nerve in her neck. According to LC, D'Amour told her that he wanted to photograph her naked in order to present the photographs at a medical seminar. D'Amour explained to LC that he would need to mark her back, and that therefore her back would have to be exposed. LC asked if she could wear a bathing suit, and D'Amour explained to her that it would be difficult to mark her back if she wore a bathing suit. D'Amour told LC that he had taken photographs of nude patients in the past, and that he would reduce her treatment costs if she allowed him to take the photographs. LC testified that she asked D'Amour if she could bring her mother to the photograph session, and that D'Amour agreed. LC also asked D'Amour whether she could see the photographs of the other nude patients, and D'Amour told her that he would show them to her when she came in to have the photographs taken.

On October 30, 1984, LC and her mother arrived at D'Amour's office after it closed for business. D'Amour showed LC a set of photographs which he had taken of another nude patient. After D'Amour took a few photographs of LC's mouth, she once again asked him if she could wear a bathing suit. D'Amour explained that, if she wore the bathing suit, it would be difficult to mark her back. LC then went into another room, and changed into a beach towel. When LC returned, D'Amour marked her back with the marker and proceeded to take several photographs of her back. He then asked LC to take the towel off; after hesitating for a couple of minutes, she dropped the towel. D'Amour took additional photographs of LC's back, and then asked her to turn around, and proceeded to take more photographs. At one point, D'Amour touched LC's pelvic area and asked her to place her thumbs in that area. LC's mother was in the room as D'Amour took the...