Kerwin v. Mo. Dental Bd.

• Decision Date: 31 July 2012
• Docket Number: No. WD 74129.,WD 74129.
• Citation: 375 S.W.3d 219
• Parties: Joseph H. KERWIN, D.D.S., Appellant, v. MISSOURI DENTAL BOARD, Respondent.
• Court: Missouri Court of Appeals

375 S.W.3d 219

Joseph H. KERWIN, D.D.S., Appellant,

v.MISSOURI DENTAL BOARD, Respondent.

No. WD 74129.

Missouri Court of Appeals,

Western District.

June 29, 2012.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 31, 2012.

Application for Transfer Denied Sept. 25, 2012.

Mariam Decker, Julia S. Grus, Columbia, MO, for Appellant.

Tina M. Crow Halcomb, Jefferson City, MO, for Respondent.

Before Division II: VICTOR C. HOWARD, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.

MARK D. PFEIFFER, Judge.

We examine this case on appeal to determine whether the Administrative Hearing Commission (“AHC”) had sufficient evidence to find that grounds existed for the Missouri Dental Board (“Board”) to discipline the dental license of Joseph H. Kerwin (“Kerwin”) under section 332.321.2.¹ Kerwin petitioned for judicial review to the Cole County Circuit Court, which affirmed the disciplinary decision of the AHC. Kerwin timely appealed to this court. We affirm.

Facts and Procedural History

Kerwin held a certificate of registration and a license to practice general dentistry in the State of Missouri. Kerwin maintained an office in Springfield with a sign outside his office identifying Kerwin as a dentist. In June 2007, the Board filed a complaint with the AHC seeking a determination that Kerwin's dental license was subject to discipline. The complaint arose out of Kerwin's April 2006 treatment of a febrile (103.9 degree fever) newborn infant patient (“J.S.”) ² in his dental office.

Craniosacral Therapy Treatment of J.S. by Kerwin, a General Dentist

J.S. was born on April 28, 2006, to Amish parents Mr. and Mrs. Schwartz (“Schwartzes”). J.S. was their sixth child and was delivered normally, without any complications noted at birth. On Sunday, April 30, 2006, J.S. developed a 103.9 degree fever. The Schwartzes contacted Kerwin, and Kerwin agreed to meet them at his Springfield dental clinic that evening. The Schwartzes understood Kerwin to be a “cranial doctor” or “chiropractor.” ³ According to the Schwartzes, Kerwin had told them that he was a doctor and practiced osteopathic medicine. Though Kerwin denies holding himself out as a medical doctor, Kerwin testified that he used craniosacral therapy ⁴ as one of his treatment modalities of dentistry in his dental practice.

A neighbor drove the Schwartzes and J.S. to Kerwin's office on the evening of April 30th. The Schwartzes reported to Kerwin that J.S. was two days old, had a 103.9 degree fever, and was having suckling issues and otherwise general restlessness with nursing.

Although an additional chart entry that Kerwin created after J.S. died indicated that Kerwin found “no abnormalities or defects,” upon physical examination of J.S. by Kerwin on April 30, 2006, Kerwin determined that (1) J.S. had a compressed frontal and occipital side bend; (2) J.S. had slight fluid or edema under the scalp of the forehead area; and (3) J.S. had signs of birth trauma. Instead of referring J.S. emergently to a medical facility with medical healthcare professionals, Kerwin performed a cranial manipulation on J.S.'s two-day-old head and also applied a vibrating machine to J.S.'s sacrum. Kerwin did not take J.S.'s temperature, though his post-death chart entry created the day of J.S.'s death noted that J.S.'s “fever went down substantially” during Kerwin's examination at his dental office. Kerwin charged $65 for the treatment on April 30th. Kerwin then told the Schwartzes that if J.S. needed medical attention, the Schwartzes could take J.S. to the hospital; but Kerwin saw no present need to take him to the hospital. Less than twelve hours later, at approximately 6:15 a.m. on May 1, 2006, J.S. died. On the date of death, Kerwin made an additional entry into J.S.'s chart:

[J.S.] died between 5 & 6 a.m., may have had a slight jaundice, had a wet diaper during tx. fever went down substantially, no abnormalities or defects found. Suspect no immune system or incomplete viscera.

The preliminary results from an autopsy performed on May 2, 2006, indicated that J.S. died from complications caused by a right cerebral subdural hematoma.

License Renewal and Audit of Continuing Education Hours

For the two-year reporting period from December 1, 2002, through November 30, 2004, the Board required that each dentist complete fifty continuing education (“CE”) hours. The Board allowed excess CE hours from one reporting period to be carried over to the next reporting period. For the 2002–2004 reporting period, Kerwin had no more than 39.25 CE hours from sponsors approved by the Board and had no carryover hours. On Kerwin's 2004–2006 renewal application, he affirmed that he had obtained fifty hours of Board-approved CE for the period from December 1, 2002, through November 30, 2004, and had maintained all of his continuing education documentation. The Board renewed Kerwin's license for 2004–2006 based on this representation.

After the Webster County coroner filed a complaint against Kerwin regarding Kerwin's April 2006 treatment of J.S., the Board conducted a field investigation of Kerwin. The investigation automatically included an audit of Kerwin's CE certificates for the reporting period December 1, 2002, to November 30, 2004. The Board's investigators requested that Kerwin provide documentation of his CE hours for the 2002–2004 reporting period, but Kerwin failed to submit adequate or accurate documentation of fifty hours of CE from Board-approved sponsors for that reporting period.

Proceedings Before the AHC and the Circuit Court

The Board filed a complaint on June 22, 2007, seeking the AHC's determination that Kerwin's license was subject to discipline. After a hearing, the AHC issued its Decision on March 10, 2009, finding that the dental license of Kerwin was subject to disciplinary action by the Board under section 332.321.2, subsections (3), (4), (5), (6), and (13).

Thereafter, the Board conducted a hearing, at which Kerwin appeared in person and by counsel, to determine the level of discipline to impose. On June 22, 2009, the Board issued its Disciplinary Order revoking Kerwin's certificate of registration and license to practice dentistry in the State of Missouri.

Kerwin filed a Petition for Judicial Review and Injunctive Relief against the Board in the Cole County Circuit Court (“circuit court”). The circuit court issued its judgment, affirming the AHC's decision.

Kerwin timely appeals.

Standard of Review

In a licensure disciplinary proceeding as here, after the AHC has independently determined “on the law and the evidence submitted by both the Board and the licensee, that cause for discipline exists,” the Board assesses an appropriate level of discipline. Moore v. Mo. Dental Bd., 311 S.W.3d 298, 302 (Mo.App. W.D.2010) (internal quotation omitted). “In such a case, section 621.145 directs that we review the ‘AHC's decision as to the existence of cause and the Board's subsequent disciplinary order “as one decision,” and proceed to review that combined decision, not the circuit court's judgment.’ ” Id. at 302–03 (quoting Lacey v. State Bd. of Registration for the Healing Arts, 131 S.W.3d 831, 836 (Mo.App. W.D.2004)). ⁵

This court will affirm the decision and disciplinary order unless the agency action:

(1) Is in violation of constitutional provisions;

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

(3) Is unsupported by competent and substantial evidence upon the whole record;

(4) Is, for any other reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion.

§ 536.140, RSMo Cum.Supp.2011. An agency's decision is unsupported by sufficient competent and substantial evidence upon the whole record only “in the rare case when the [decision] is contrary to the overwhelming weight of the evidence.” Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003). “ ‘We will not substitute our judgment for that of the [AHC] on factual matters, but questions of law are matters for the independent judgment of this court.’ ” Holdredge v. Mo. Dental Bd., 261 S.W.3d 690, 693 (Mo.App. W.D.2008) (quoting Moheet v. State Bd. of Registration for the Healing Arts, 154 S.W.3d 393, 398 (Mo.App. W.D.2004)). In reviewing the agency's decision, we view the evidence objectively and not in the light most favorable to the agency's decision. Hampton, 121 S.W.3d at 223. However, we defer to the AHC on issues involving the credibility of witnesses and the weight and value to be given to their testimony. Koetting v. State Bd. of Nursing, 314 S.W.3d 812, 815 (Mo.App. W.D.2010).

Analysis

Point I: Kerwin's Gross Deviation from Standard of Care

In the first of four points raised on appeal, Kerwin contends that the AHC erred in finding that his license should be disciplined because the Board's complaint against him exceeded its statutory authority under sections 332.071 (defining practice of dentistry) and 332.321 (creation of Board; grounds and procedure for Board's refusal to issue or renew license, or for suspension or revocation of license). He asserts that the Board is regulating his practice of craniosacral therapy, which is a form of therapy not regulated in Missouri and not within the statutory scope of the practice of dentistry.⁶ This, of course, belies Kerwin's own testimony that he believed craniosacral therapy was a treatment modality of dentistry. More importantly, however, Kerwin's argument is a red herring argument as it ignores the real basis of the AHC's finding of cause to discipline his dental license—that Kerwin grossly deviated from the standard of care of a dentist in violation of section 332.321.2(5).

The functions or duties of the practice of dentistry are defined in section 332.071. The AHC concluded that Kerwin's conduct in providing craniosacral treatment to a two-day-old newborn with a fever, evidence of swelling under the baby's...