Lee v. State Bd. of Dental Examiners, 81SA409
| Decision Date | 06 December 1982 |
| Docket Number | No. 81SA409,81SA409 |
| Citation | 654 P.2d 839 |
| Parties | Robert O. LEE, D.D.S., P.C., Petitioner-Appellant, v. The STATE BOARD OF DENTAL EXAMINERS of the State of Colorado; and Willis V. Kittleman, Jr., D.D.S., O.J. Lucero, D.D.S., Thomas E. Moran, D.M.D., William J. Jagger, D.D.S., Fred D. Greenblatt, D.D.S., Carole Odden, D.H., Shirley Schroeder, D.H., H. Conway Gandy, Esq., the individual members thereof, Respondents-Appellees. |
| Court | Colorado Supreme Court |
Calkins, Kramer, Grimshaw & Harring, Kleh, Himelspach, Berrett & Will, David M. Berrett, Denver, for petitioner-appellant.
J.D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Mary J. Mullarkey, Sol. Gen., William A. Richardson, Asst. Atty. Gen., Regulatory Law Section, Denver, for respondents-appellees.
Dr. Robert O. Lee appeals from an order of the State Board of Dental Examiners (board) suspending his license to practice dentistry for two weeks due to violations of the Dental Practice Law of Colorado, section 12-35-101, et seq., C.R.S.1973 (1978 Repl.Vol. 5). He contends that several of the evidentiary findings of fact underlying the suspension order lack adequate support in the record. He also claims that even if the findings are supported by adequate evidence, they are nevertheless insufficient as a matter of law to constitute "negligent malpractice," "gross incompetence" or "unprofessional conduct" as those terms are used in section 12-35-118, C.R.S.1973 (1978 Repl.Vol. 5). 1 Finally, Dr. Lee argues that the definition of "unprofessional conduct" contained in section 12-35-118(2)(s), C.R.S.1973 (1978 Repl.Vol. 5), is unconstitutionally vague. 2 We hold that there is sufficient evidence to support the challenged evidentiary findings of fact. We also hold that while these findings are sufficient to support the charge of "negligent malpractice," the board improperly determined that Dr. Lee engaged in "gross incompetence" and "unprofessional conduct." In light of this disposition we remand for a reconsideration of the appropriate sanction.
On January 30, 1978, Mrs. Kathleen Young took her seven-year-old son Adam to Dr. Lee for a routine dental examination. Dr. Lee visually examined and took X-rays of Adam's teeth and observed that the boy had cavities in two primary or "baby" teeth, designated by dental nomenclature as teeth I and S. He informed Mrs. Young of Adam's two cavities, and she scheduled an appointment for treatment on February 21, 1978. At some time prior to treatment, Dr. Lee examined the X-rays and concluded that Adam also probably had cavities in two other teeth, L and B. He noted on his file that Mrs. Young should be called and advised of these additional cavities.
At the scheduled appointment on February 21, Dr. Lee decided to excavate the cavities and place a medical base in tooth I and a metal alloy in both teeth I and S. This form of treatment, known as an amalgam restoration, was chosen in place of a pulpectomy. 3 After treating teeth I and S, Dr. Lee advised Mrs. Young to schedule an appointment for Adam in six months for a routine examination. The doctor made no mention of cavities in Adam's other teeth.
In April of 1978, while in California with his family on a vacation, Adam suffered oral pain and swelling. When his condition did not improve, Mrs. Young contacted Dr. Kilgore, a California dentist. After unsuccessfully attempting to relieve an abscess in tooth I, Dr. Kilgore extracted the tooth. When the family returned to Denver, Mrs. Young took Adam to Dr. Philip Walter, who removed tooth S because of extensive decay and root resorption. 4
Mrs. Young complained to the board which thereafter ordered Dr. Lee to appear and answer the following charges: gross incompetence and negligent malpractice, section 12-35-118(1)(e), C.R.S.1973 (1978 Repl.Vol. 5); immoral, unprofessional, or dishonorable conduct, section 12-35-118(1)(l), C.R.S.1973 (1978 Repl.Vol. 5); willful or repeated use of treatment procedures inconsistent with the demonstrable need of the patient, section 12-35-118(1)(n), C.R.S.1973 (1978 Repl.Vol. 5); engaging in a pattern of dental practice which fails to meet generally accepted standards of dental care, section 12-35-118(1)(p), C.R.S.1973 (1978 Repl.Vol. 5); and unprofessional conduct by abandonment of a patient, section 12-35-118(2)(s), C.R.S.1973 (1978 Repl.Vol. 5). During the hearing conducted before a hearing examiner, Mrs. Young testified to Dr. Lee's failure to inform her of a guarded prognosis in relation to teeth I and S and his failure to mention any additional cavities in teeth L and B. According to Mrs. Young, the doctor merely stated to her that Adam "should come back for another six month checkup."
Dr. Walter also testified at the disciplinary hearing. He described his treatment of Adam, the treatment previously administered by Dr. Lee, and, in his capacity as an expert witness who had practiced dentistry in the Denver area for a number of years, he testified to the generally accepted community standard of dental care. It was Dr. Walter's opinion that Dr. Lee's action did not comport with this standard. Specifically, Dr. Lee's X-rays of teeth I and S were, in Dr. Walter's view, inadequate diagnostic tools because they failed to depict the periapical areas of the teeth. These areas surround the roots of the teeth and, according to Dr. Walter, must be observed before a proper course of treatment for teeth with deep decay can be determined. Further, it was Dr. Walter's testimony that where there is gross decay present, as in teeth I and S, it is inappropriate to treat the teeth with an amalgam restoration. In fact, Dr. Walter believed that, at least with regard to tooth S, Dr. Lee's treatment actually exacerbated the process of tooth decay. Dr. Walter was also of the opinion that, given Dr. Lee's conservative choice of treatment, the generally accepted standard of care required him to inform Mrs. Young of the extent of decay in teeth I and S and to caution her to notify him of any troublesome symptoms. Finally, Dr. Walter stated that although Dr. Lee's X-ray of tooth B overlapped an adjacent tooth and consequently masked the extent of decay in tooth B, the X-ray did show that tooth B had caries, and that the standard of care in the community required Dr. Lee to notify Mrs. Young of this kind of condition.
Although Dr. Lee testified in his own behalf, he did not specifically recall his treatment of Adam. His testimony consequently was based upon his office records and his general procedures in treating dental patients. He stated that unless there was a serious bacterial invasion into the pulp of the tooth, he ordinarily would employ the more conservative and less expensive treatment of excavating the cavity and filling the tooth with an alloy rather than performing a pulpectomy. When he did elect against a pulpectomy, however, his normal procedure was to inform the patient or the patient's parents that the prognosis was a guarded one. Finally, Dr. Lee offered no reason why he never treated teeth L and B, both of which appeared on the January 30 X-rays to have likely cavities, although his normal procedure, according to his testimony, would have been to advise the patient or his parents of the cavities.
Among the hearing officer's relevant findings of fact were the following:
The hearing officer concluded that Dr. Lee had committed "negligent malpractice and gross incompetence" in violation of section 12-35-118(1)(e) because of his failure to retake the X-ray of tooth I so that all of the tooth would be visible prior to Adam's treatment, his failure to advise Mrs. Young that Adam might have trouble with teeth S and I, his failure to advise Mrs. Young that Adam had cavities in teeth L and B, and his failure to perform or offer to perform a pulpectomy on Adam's teeth I and S. The hearing officer ruled, however, that the evidence was insufficient to establish the other allegations of professional misconduct. The recommendation of the hearing officer was a two week suspension of Dr. Lee's license, plus two years probation conditional on the doctor's taking educational courses in dental practice.
Dr. Lee petitioned the board to review the initial decision of the hearing officer. See section 24-4-105(15)(a), C.R.S.1973 (1982 Repl.Vol. 10). The board adopted the hearing officer's findings of fact and concluded that the acts of misconduct relied on by the hearing officer constituted not only "negligent malpractice" and "gross incompetence" in violation of section 12-35-118(1)(e), but also "unprofessional conduct" as proscribed by section 12-35-118(2)(s). The board imposed a suspension period of thirty days, suspended execution of all but two weeks of the...
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