Marcantonio v. Rhode Island Department of Health, C.A. No. PC08-6873 (R.I. Super 2/12/2010), C.A. No. PC08-6873.
| Decision Date | 12 February 2010 |
| Docket Number | C.A. No. PC08-6873. |
| Parties | DAVID A. MARCANTONIO, D.D.S. v. RHODE ISLAND DEPARTMENT OF HEALTH, HEALTH SERVICES REGULATION, BOARD OF EXAMINERS IN DENTISTRY. |
| Court | Rhode Island Superior Court |
Before this Court is an appeal by David A. Marcantonio, D.D.S. ("appellant") from a decision of the Rhode Island Board of Examiners in Dentistry ("Board"), suspending his license to practice dentistry for a minimum of two years due to unprofessional conduct in violation of G.L. 1956 § 5-31.1-10. Jurisdiction in this Court is pursuant to G.L. 1956 § 42-351-5.
The appellant has been a licensed dentist in the State of Rhode Island since 1986. For most of his career, appellant was also a participating provider with Delta Dental of Rhode Island ("Delta Dental"). Beginning in December 2006, Delta Dental received three complaints in a twelve month period regarding the quality of appellant's treatment. The complaints prompted Delta Dental to undertake an audit of appellant's office. In January 2008, Delta Dental obtained the treatment charts and X-rays of ninety-five patients.
On February 22, 2008, Dr. James Balukjian, Dental Director for Delta, filed a complaint letter with the Chairman of the Board of Dental Examiners and with the Director of the Department of Health. (Appellant's Ex. D.) In his letter, Dr. Balukjian alleged that the audit revealed "a disturbing pattern of quality of care issues, negligence, fraud, and record-keeping violations." Id. In addition, Dr. Balukjian opined that the appellant "pose[d] a risk to his patients," and requested that the Board revoke his license to practice dentistry. Id
On March 11, 2008, the Board issued a summary suspension of appellant's dental license pursuant to its authority under § 5-31.1-19.1 (Appellant's Ex. E.) On March 13, 2008, the appellant received a temporary restraining order permitting him to continue to perform cleanings and fillings, but prohibiting him from undertaking new patients requiring crowns, bridges, or root canals. (Appellant's Ex. F.) The temporary restraining order also required appellant to receive written approval from an independent dentist before performing crown, bridge, or root canal work on current patients. Id. The parties chose Dr. Stephen Skoly to act as the independent supervisory dentist.
A properly noticed hearing was commenced on April 2, 2008. Six sessions were conducted over the course of three months, with the final session held on June 18, 2008. Bruce W. McIntyre, Esq. presided over the hearings, which included documentary evidence and the testimony of four witnesses. The Board's four member Hearing Panel, composed of professionals in the dental field, also was present. At the outset, the parties agreed to consolidate the appeal of the summary suspension, relating to whether appellant constituted an immediate danger to the public, with the substantive charges relating to appellant's license. (4/2/08 Tr. 7.)
The State's first witness was Julie Ferrini, the Director of Program Integrity at Delta Dental. Ms. Ferrini's duties at Delta Dental involve oversight of the various clinical departments, including case management, appeals, fraud and abuse, complaints and grievances, and audits. (4/2/08 Tr. 12-13.) Ms. Ferrini testified that Delta Dental had received three consumer complaints against the appellant within a twelve month period and that Delta Dental's Quality Care Committee had voted to terminate the appellant's status as a participating provider and to conduct an audit of appellant's practice. Id. at 13-14.
During her testimony, Ms. Ferrini explained the methodology Delta Dental used to audit appellant's practice. Id. at 14. This involved identifying Delta Dental members treated by appellant who had received "major restorative services and endo[dontic] procedures," such a "crowns, bridges, and root canals," during the years 2004 and 2005. Id. Ninety-five such patients were identified, and their complete files, including any X-rays, were copied by three clinical auditors. Id. at 15. Dr. Balukjian then reviewed the findings of the audit. Id. at 16.
Dr. Balukjian testified as the dental expert for the State. In addition to his Director position at Delta Dental, Dr. Balukjian has been a practicing dentist in Rhode Island since 1977. Id. at 39. Dr. Balukjian explained that he was asked to select ten patient files out of those he personally reviewed during the audit to constitute the State's case against the appellant. Id. at 48. The vast majority of Dr. Balukjian's testimony consisted of reviewing appellant's treatment of the ten patients. The appellant testified on his own behalf, responding to Dr. Balukjian's allegations and generally defending his treatment of the same ten patients. The Court will proceed to summarize the testimony regarding each patient in turn.
Dr. Balukjian first testified regarding the appellant's treatment of Patient JC,2 expressing concern with the quality of care relative to a four-unit fixed bridge involving tooth numbers seven through ten. Id. at 50. According to Dr. Balukjian, tooth number seven showed "open margins" and decay only a year after the bridge was inserted. Id. at 51. "Open margins," Dr. Balukjian explained, is a term used when a dental crown does not properly fit the natural tooth structure. Id. at 52.
Dr. Balukjian testified that the patient's X-rays showed that while appellant had extracted tooth numbers eight and nine, he had left the roots in place, a practice which could lead to serious consequences, such as an "infection underneath the bone" that "could get into the brain pretty quickly." Id. at 53. Furthermore, Dr. Balukjian noted that when Delta Dental requested treatment notes from appellant explaining what had happened to these teeth, appellant rewrote the treatment chart. Id. at 54-55.
On cross examination, Dr. Balukjian explained again why leaving a complete root in the jaw after breaking off the crowns during an extraction does not meet the applicable standard of care. (4/23/08 Tr. 58.) He testified that he never spoke to appellant or to the patient as to why he left the roots behind. Id. at 59. However, Dr. Balukjian disagreed with appellant's counsel's suggestion that the roots were encased in bone and stated that the risk of removing the roots would be similar to a simple extraction. Id. at 67, 69. If the patient had refused treatment, Dr. Balukjian explained that he would "definitely document that." Id. at 74. With respect to the two different sets of treatment records, Dr. Balukjian concluded that appellant rewrote detailed treatment chart notes for Delta Dental to make them appear like "what normal treatment chart notes look like from his office." Id. at 61-62.
During his testimony, appellant responded to the allegation that he committed fraud by submitting two separate versions of the patient's treatment notes to Delta Dental. He explained that he rewrote the treatment notes for the benefit of the dentist who was taking over the case in order to make them more legible but had failed to make a notation in the chart that the notes were rewritten. (5/28/08 Tr. 79-80.)
With respect to the allegations concerning his treatment of tooth numbers eight and nine, appellant testified that the teeth were starting to get dark because of "external root resorption" and that the patient's primary concern was with their appearance. Id. at 82. The appellant stated that his course of treatment—removing the teeth, placing a bridge, but leaving the roots intact— was "the most aesthetic way to go about bringing back her smile." Id. at 83. The appellant testified that leaving the roots in place was not a risk to the patient because they were starting to be encapsulated in bone and there were no signs of infection. Id. at 84-85. The appellant also testified that he reimbursed the patient when she was not pleased with the appearance of the new bridge. Id. at 87.
On cross examination, the appellant testified that he rewrote the treatment chart of this patient a year and one-half after treatment was rendered based upon his memory and input from the patient. (6/5/08 Tr. 39-40.) The appellant testified that the only substantial difference between the two versions is that the rewritten chart shows an extraction performed in 2004, which the original chart does not. Id. at 46. The appellant admitted that, with respect to this patient, he did not comply with the minimal standard of care regarding record keeping, adding that his "record-keeping is awful." Id. at 47. Patient "JG"
In reviewing appellant's treatment of Patient JG, Dr. Balukjian first noted untreated decay over several years in tooth number four. Untreated decay, Dr. Balukjian opined, is a problem because it "can get larger and then encroach upon the pulp and the nerve of the tooth" and could result in the tooth being lost or the need for a root canal. (4/2/08 Tr. 61.) Dr. Balukjian also pointed out untreated decay under restorations appellant had placed on tooth numbers eight and fourteen. In addition, Dr. Balukjian testified that tooth number thirty showed untreated decay and underfilled canals following a root canal procedure. Overall, Dr. Balukjian testified that appellant's treatment of "JG" did not meet the minimum standard of care in dentistry.
On cross examination, Dr. Balukjian reiterated that he took issue with appellant's treatment of four teeth. As to the issue of untreated decay, Dr. Balukjian stated, "I don't know why a dentist would look at three successive years of X-rays and see decay getting larger on a tooth and not do something about it." (4/23/08 Tr. 78.) If the patient refused to have the tooth treated, Dr. Balukjian testified that it would be the standard of care to note that fact in the record and suggest that the patient find another dentist....
To continue reading
Request your trial