Johnson v. Dist. of Columbia
| Decision Date | 13 July 2017 |
| Docket Number | No. 14–AA–1349,14–AA–1349 |
| Parties | Robert B. JOHNSON, Petitioner, v. DISTRICT OF COLUMBIA, DEPARTMENT OF HEALTH, Respondent. |
| Court | D.C. Court of Appeals |
Alan Dumoff for petitioner.
Adam Daniel for respondent. Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General, were on the brief.
Before Thompson and McLeese, Associate Judges, and Ruiz, Senior Judge.
Petitioner Robert B. Johnson challenges the October 29, 2015, Superseding Decision and Final Order (the "Superseding Decision") of the District of Columbia Board of Dentistry (the "Board" or the "D.C. Board") that revoked his license to practice dentistry in the District of Columbia. For the reasons set out below, we remand for the Board to reconsider the sanction it imposed.
On September 27, 2013, the Virginia Board of Dentistry (the "Virginia Board"), after conducting a two-day hearing, issued an order revoking petitioner's license to practice dentistry in Virginia. The order set out the Virginia Board's findings on charges against petitioner based on the treatment of twenty-two patients over the course of a decade. On June 18, 2014, the D.C. Board issued a Notice of Intent to Take Disciplinary Action ("NOI") based on the disciplinary action taken in Virginia.1 Based on the Virginia Board's findings of fact, the NOI selectively charged petitioner with infractions in connection with the treatment of several patients in Virginia.
The D.C. Board conducted a hearing on August 27, 2014, during which it heard testimony from government expert witness Dr. Robert Caldwell, D.D.S., petitioner, and a few of petitioner's former patients. The Board issued a Decision and Order on November 5, 2014 (the "Original Decision"), in which it adopted all of the Virginia Board's findings of fact, including findings relating to acts or omissions by petitioner that were not specified in the NOI, and revoked petitioner's license to practice dentistry in the District. Petitioner timely sought review of the Original Decision by this court. On July 16, 2015, this court granted a consent motion to remand the record for further proceedings "in light of [petitioner's original] brief[,]" which asserted that the Board had erred in a number of respects, primarily by failing to "limit [ ] its inquiry into the specific charges contained in the District's [NOI]" and by "failing to consider whether the conduct at issue in Virginia would have been grounds for taking disciplinary action in the District[.]"2 Thereafter, on October 29, 2015, the Board issued its post-record-remand Superseding Decision, which is the subject of the instant review.
In the Superseding Decision, the Board adopted only those findings by the Virginia Board that were repeated in the NOI. After disposing of several pending motions (including a motion by petitioner to obtain information concerning a pending investigation by the Board into a complaint brought by a patient in the District of Columbia, which motion the Board denied), the Superseding Decision concluded that petitioner (who, the Board found, "practiced general dentistry and is a general dentist") committed (in Virginia) the following acts or omissions, which it found are grounds for discipline in the District of Columbia:
, allergy, or related condition by a medical doctor)[;]
• On September 23, 2009, [he] provided injections of procaine, methyl, and folic acid into Patient O's tonsils for pain. ... [and] [t]here was no documentation of a dental diagnosis for this treatment[;]3
• On July 29, 2009, [he] performed cranial myofascial therapy on Patient S without adequate dental diagnosis for doing so[;]
• [He] also [in 2009] removed amalgam from Patient S's teeth without an adequate dental indication for doing so (or any diagnosis of mercury poisoning, allergy or related condition by a medical doctor).4
The Board found that "any of" the above-described findings—relating to "practicing outside the scope of his dental license," "failing to conform to the standards of acceptable conduct and prevailing practice," and "failure to properly maintain records" as required by regulation in the District of Columbia—was "sufficient to warrant the imposition of disciplinary action" in the District of Columbia. Citing petitioner's devotion to a "holistic approach toward the practice of dentistry[,]" the Board also found "that there are no restrictions, fines, or courses that it could impose that would stop [petitioner] from crossing the line and engaging in practices that are beyond the scope of practice of dentistry and/or that fail to conform to the standards of acceptable conduct and prevailing practices of dentistry in the District of Columbia." Quoting petitioner's statement at the close of the hearing that he had "basically stopped doing" procedures when he learned that they were not acceptable in Virginia, the Board found that his testimony, which the Board called "disingenuous and self-serving," "implie[d] that he continued doing these procedures in some manner or form, as opposed to full-stop cessation [,]" a fact that the Board found "undermine[d] his statements that he would not engage in conduct if he knew that it was not permissible." The Board found that petitioner "knew or should have known that his conduct was not acceptable and that he chose to offer these services to his patients anyway." The Board explicitly did not credit, and found "implausible," petitioner's testimony to the extent that it "attempt[ed] to convince th[e] Board that he provided services different from the ones documented in his records."
The Board found that petitioner's recordkeeping is "unreliable" and that the Board "would be unable to trust the content of [petitioner's] records if it were to allow [him] to continue to practice and to attempt to monitor his conduct through an audit of his records in the future[,]" and cited the "lack [ ] [of] any assurances that if allowed to maintain his dentist license ... [petitioner] would not continue to practice beyond the scope of his District of Columbia license, fail to conform to the acceptable standards and prevailing practices of the profession, and fail to comply with the District's recordkeeping requirements." Finding "no lesser combination of sanctions ... that would sufficiently protect the citizens of the District of Columbia from [petitioner's] impermissible dental practices[,]" the Board revoked petitioner's District of Columbia dental license. It noted that revocation means that he is not eligible to apply for reinstatement for five years.
In the brief in support of his petition for review, petitioner asserts that the only NOI charges that were sustainable were those involving documentation failures, and that the charges set out in the NOI with regard to scope of practice and standards of practice were based on actions or omissions that would not have been sanctionable in the District of Columbia. He further argues that the Board made "numerous errors of law, applying Virginia rather than District of Columbia legal standards," that the Board applied "vague practice standards," improperly limited the presentation of evidence, and improperly denied his motion to obtain the results of the Board's investigation into his complained-about conduct in the District of Columbia. Finally, he contends that even if all the charges are sustainable, the Board "reached a sanction that cannot be supported by substantial evidence." Petitioner asserts that the Board, in issuing its Superseding Decision, primarily sought "to maintain the revocation," and "simply justify the prior result," rather than "begin the consideration ... afresh"5 after eliminating the defects in the Original Decision. "[T]hat error," he argues, "still pervades [the Board's] decision to use its most serious sanction." He contends that the sanction the Board imposed reflects its "negative reaction to his ‘enthusiasm’ about holistic dentistry" and "biologic dentistry,"6 and exposes its willingness to decide the matter based on the full Virginia order "no matter the [differences between Virginia and District of Columbia law] or the evidence."
We will reverse the Board's decision only if it is "[a]rbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law[.]" D.C. Code § 2–510(a)(3)(A) (2012 Repl.). "The [Board] must make findings on each material issue of fact; the factual findings must be supported by substantial evidence on the record as a whole; and the [Board's] conclusions must flow rationally from those findings and comport with the applicable law." Williamson v. District of Columbia Bd. of Dentistry , ...
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