Homoly v. North Carolina State Bd. of Dental Examiners

• Decision Date: 07 January 1997
• Docket Number: No. COA96-252,COA96-252
• Citation: 479 S.E.2d 215,125 N.C.App. 127
• Parties: Paul A. HOMOLY, D.D.S., Petitioner-Appellant v. NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Respondent-Appellee.
• Court: North Carolina Court of Appeals

Page 215

479 S.E.2d 215

125 N.C.App. 127

Paul A. HOMOLY, D.D.S., Petitioner-Appellant v. NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Respondent-Appellee.

No. COA96-252.

Court of Appeals of North Carolina.

Jan. 7, 1997.

Frank R. Recker & Associates by Frank R. Recker, Kennedy, Covington, Lobdell & Hickman by Kiran H. Mehta and Lara E. Simmons, for petitioner-appellant.

Bailey & Dixon, L.L.P. by Ralph McDonald and Denise Stanford Haskell, for respondent-appellee.

WALKER, Judge.

On 25 April 1988, Ms. Vickie Ebbers consulted with petitioner, a licensed dentist, regarding the placement of fixed dental implants, dentures, and a lower bridge in her mouth. Ebbers agreed to a treatment plan recommended by petitioner which included the placement of implants and two dental bridges. On 14 July 1988, petitioner placed dental implants in Ebber's mouth. Later, on 16 August 1989, petitioner placed a bridge in Ebber's upper arch, and on 20 December 1989, Dr. Rossitch, petitioner's employee, placed a bridge in Ebber's lower arch. Petitioner continued to treat Ebbers until 15 May 1991. On 1 February 1993, Ebbers filed a complaint with respondent regarding the treatment she received from petitioner.

After an evidentiary hearing, respondent found that petitioner had failed to comply with the applicable standard of care in his treatment of Ebbers and that such failure constituted negligence. Petitioner was formally reprimanded for his conduct but additional disciplinary action was deferred for a period of five years provided that he abide by certain probationary terms. Petitioner, pursuant to N.C.Gen.Stat. § 150B-45 (1995), petitioned the trial court seeking review of respondent's decision to reprimand him. The trial court affirmed respondent's decision.

On appeal, petitioner first contends that N.C.Gen.Stat. § 150B-22 (1995) requires respondent to attempt to resolve its disputes through informal settlement procedures before proceeding to a formal hearing. Petitioner argues that because respondent did not attempt to resolve the dispute through informal settlement procedures, his case never properly became a "contested case" under N.C.Gen.Stat. § 150B-22, and respondent did not have jurisdiction to hear his case. This Court, in another case involving petitioner, recently rejected the same argument. In Homoly v. N.C. State Bd. of Dental Examiners, 121 N.C.App. 695, 468 S.E.2d 481, review denied, 343 N.C. 306, 471 S.E.2d 71 (1996), our Court held that N.C.Gen.Stat. § 150B-22 did not apply to respondent. We find Homoly controlling in the present case, and it is therefore unnecessary to further address this issue.

Petitioner also contends that the trial court erred in upholding respondent's decision to reprimand him because respondent's decision was not supported by the evidence. The North Carolina Administrative Procedure Act (APA), codified in Chapter 150B of the General Statutes, governs trial and appellate court review of administrative agency decisions. Amanini v. N.C. Department of Human Resources, 114 N.C.App. 668, 673, 443 S.E.2d 114, 117 (1994). The court's scope of review is described in N.C.Gen.Stat. § 150B-51(b)(1995) as follows:

[T]he court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modify the agency's decision if the substantial rights of the petitioners may have been prejudiced because the agency's findings, inferences, conclusions, or decisions are:

(1) In violation of constitutional provisions;

(2) In excess of the statutory authority or jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B 30, or 150B-31 in view of the entire record as submitted; or

(6) Arbitrary or capricious.

The standard of review to be applied by the reviewing court depends on the issues presented on appeal. Amanini, 114 N.C.App. at 674, 443 S.E.2d at 118 (citations omitted).

If [petitioner] argues the agency's decision was based on an error of law, then "de novo" review is required. If, however, [petitioner] questions (1) whether the agency's decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the "whole record" test.

Id. Under the "de novo" standard, the reviewing court must consider the question presented on appeal anew, as if undecided by an agency, whereas under the "whole record" test, the reviewing court must consider all competent evidence to determine whether the agency's decision is supported by substantial evidence. Id. "Substantial evidence" is that amount of evidence a reasonable person would consider adequate to support a particular conclusion. Walker v. N.C. Dept. of Human Resources, 100 N.C.App. 498, 503, 397 S.E.2d 350, 354 (1990), cert. denied, 328 N.C. 98, 402 S.E.2d 430 (1991). The scope of review of this Court is to examine the "whole record" in order to determine whether substantial evidence exists to support respondent's findings and conclusions that petitioner failed to comply with the applicable standard of care. See Dorsey v. UNC-Wilmington, 122 N.C.App. 58, 62-63, 468 S.E.2d 557, 560 (1996).

Because petitioner contends that respondent's decision to reprimand him for negligence was not supported by the evidence, the ...