Md. State Bd. of Dental Examiners v. Tabb

• Decision Date: 30 June 2011
• Docket Number: Sept. Term,No. 2463,2008.,2463
• Citation: 199 Md.App. 352,22 A.3d 921
• Parties: MARYLAND STATE BOARD OF DENTAL EXAMINERSv.Deborah K. TABB.
• Court: Court of Special Appeals of Maryland

199 Md.App. 352

22 A.3d 921

MARYLAND STATE BOARD OF DENTAL EXAMINERS

v.Deborah K. TABB.

No. 2463

Sept. Term

2008.

Court of Special Appeals of Maryland.

June 30, 2011.

Kathleen A. Ellis & Richard N. Bloom (Douglas F. Gansler, Atty. Gen., on the brief), Baltimore, MD, for appellant.Randell H. Norton (Ramona R. Cotca, Thompson O'Donnell, LLP, on the brief), Washington, D.C., for appellee.Panel: ^* DAVIS, ARRIE W., WOODWARD and JAMES A. KENNEY, III (Retired, Specially Assigned), JJ.WOODWARD, J.

On August 3, 2005, appellant, Maryland State Board of Dental Examiners (“the Board”) charged appellee, Deborah K. Tabb, DDS, with violating Maryland Code (1981, 2005 Repl.Vol.), § 4–315(a)(3), (6), (16), (18), and (22) of the Health Occupations Article (“H.O.”), COMAR 10.44.23.02, and § 5B of the American Dental Association's Principles of Ethics and Code of Professional Conduct (“ADA Code of Conduct”) regarding the treatment of 29 patients. Prior to the hearing, the administrative law judge (“ALJ”) granted the motion of the Board's administrative prosecutor (“the prosecutor”) to exclude appellee's expert witness summaries and testimony, because the summaries did not comply with the applicable discovery regulation, COMAR 10.44.07.08(B).

After a 10–day hearing drawn out over the course of several months, the ALJ concluded on September 24, 2007, that appellee violated H.O. § 4–315(a)(6), (16), (18), and ADA Code of Conduct § 5B, but did not violate H.O. § 4–315(a)(3), (22), and COMAR 10.44.23.02. In an opinion issued on March 2, 2008, the Board, however, upheld all of the charges brought against appellee and ordered, among other things, that appellee be reprimanded and placed on eighteen months' probation. On November 26, 2008, the Circuit Court for Montgomery County (Debelius, J.) reversed the Board's final opinion and order and remanded the case to the Office of Administrative Hearings (“OAH”) for a new hearing on the charges relating to the alleged violations of H.O. § 4–315(a)(6), (16), (18), and ADA Code of Conduct § 5B. This timely appeal followed. The Board presents two questions for our review, which we have rephrased:

I. Did the Board err or abuse its discretion in adopting the ALJ's ruling that excluded appellee's expert witness summaries and testimony, and if so, did such error require vacating the Board's finding of violations of H.O. § 4–315(a)(6), (16), (18), and ADA Code of Conduct § 5B?

II. Was there substantial evidence to support the Board's finding of violations of H.O. § 4–315(a)(3) and (22) and COMAR 10.44.23.02?

For the reasons stated herein, we shall affirm the judgment of the circuit court.

BACKGROUND

Upon receiving allegations of incompetent dental treatment, unnecessary dental procedures, and failure to secure informed consent, the Board initiated an investigation of appellee's treatment of 29 patients in her Bethesda, Maryland office. On August 3, 2005, the Board charged appellant with violating the following provisions of the Maryland Dentistry Act, H.O. § 4–315(a):

(3) Obtains a fee by fraud or attempts to obtain a fee by fraud;

* * * (6) Practices dentistry in a professionally incompetent manner or in a grossly incompetent manner;

* * *

(16) Behaves dishonorably or unprofessionally, or violates a professional code of ethics pertaining to the dentistry profession;

* * *

(18) Violates any rule or regulation adopted by the Board;

* * *

(22) Knowingly submits to a third party any claim form, bill, or statement which contains any misleading, deceptive, false, incomplete, or fraudulent representation asserting a fee which is greater than the fee that the dentist usually accepts as payment in full for any given dental appliance, procedure, or service[.]

The Board also alleged that appellee violated ADA Code of Conduct § 5B, which provides: “Dentists shall not represent the fees being charged for providing care in a false or misleading manner.” Finally, the Board claimed that appellee violated COMAR 10.44.23.02, which states, in relevant part: “Unprofessional conduct includes the removal of sound or serviceable mercury amalgam restorations by a dentist without obtaining appropriate informed consent from the patient....”

On August 9, 2005, the OAH sent a Notice of In–Person Prehearing Conference to inform the parties that a pre-hearing conference was scheduled for November 22, 2005. According to the instructions accompanying the notice, the parties were required, fifteen days before the pre-hearing conference, to file with the OAH and serve on each other a pre-hearing conference statement that included, among other things, “[the] name and curriculum vitae of any expert witness” testifying and “[a] summery [sic] of the expert witness's testimony, including the opinion offered and the factual basis(es) and the reason(s) underlying the opinion[.]” The prosecutor mailed her pre-hearing conference statement to appellee on November 4, 2005, and filed it with the OAH on November 8, 2005.

Appellee provided her pre-hearing conference statement to the prosecutor on November 7, 2005, and filed it with the OAH that same day. Included in appellee's statement were the names of two expert witnesses, Dr. Michael Pollowitz and Dr. Charles D. Kirksey, whom appellee intended to call at the hearing, and the following summary of their expected testimony:

1. Dr. Michael Pollowitz is an expert in the field of general dentistry. He will testify regarding his review of the charts, radiographs, his on-site visit with [appellee] and observation of her patient care. It is anticipated that Dr. Pollowitz will testify regarding his training and experience in the field of general dentistry, his review of the allegations in the Board Complaint, and [the Board's expert witness's] comments thereon as well as his review of all applicable charts and radiographs. It is anticipated that Dr. Pollowitz will testify that [appellee]'s dental practices do not obtain fees by fraud, nor did her practices constitute an attempt to obtain a fee by fraud. He will testify that he observed no signs of professional incompetence when he visited [appellee]'s office; viewing both her patient management and clinical skills. He will testify that her informed consent practices comply with the applicable standard of care and that he does not see any history of [appellee] recommending amalgam restorations for removal for mercury content or other systemic health related reasons. Dr. Pollowitz will testify that treatment planning or opinions regarding need for treatment cannot be based on radiographs alone if such an opinion fails to factor in the clinical exam findings. Dr. Pollowitz will testify that the treatment performed on patients A through CC was necessary and appropriate. Dr. Pollowitz will testify that there is no basis for the Board's complaint of overaggressive restoration of teeth and that his clinical observation of [appellee] supports his contention that her restorative work is excellent and meets or exceeds the standard of care. He will testify that her treatment planning is appropriate and that patients are provided with all options, associated risks and benefits, and that the patients themselves choose how aggressive to be in pursuing their dental health and esthetic needs, and give informed consent for all treatment. He will testify that her use or recommendation of irrigation after root planing and curettage was appropriate and that he sees no deliberate or intentional upcoding. He will testify regarding the staff practices with respect to coding and billing in light of [appellee]'s fee schedule costs. Dr. Pollowitz will testify that he sees no evidence of improperly polymerized composites and that failure on a given case does not constitute an inherent problem requiring any remedial action and can and does occur within the standard of care. Dr. Pollowitz will testify that the use of sealants in adults is appropriate for preventative treatment and that any adult presented with that option may choose to pursue such prophylactic care.

2. Dr. Charles D. Kirksey is an expert in the field of general dentistry. Dr. Kirksey will testify regarding his review of the patient chart and radiographs, his training and expertise in the field of dentistry, and his finding as to each allegation made by the Board and [the Board's expert] as outlined hereinabove. He will testify that [appellee] complied with the applicable standard of care in her treatment of the patients, did not attempt to or obtain a fee by fraud, practiced in a professionally competent manner, appropriately treatment planned patients, did not improperly remove amalgam restorations for mercury content or other systemic health reasons, was not overaggressive in her treatment and/or treatment planning, made appropriate recommendations to patients regarding treatment planning, used irrigation appropriately, did not intentionally upcode, did not improperly polymerize composites, appropriately used polymerized composites, and appropriately recommended sealants for adults, and obtained patient consent for all procedures.

On November 18, 2005, the prosecutor faxed and mailed to appellee's counsel a Motion to Exclude Respondent's Expert Reports and Testimony, asserting that appellee's summary of her experts' anticipated testimony in the pre-hearing conference statement did not comply with the discovery regulations. Specifically, the prosecutor argued that appellee's expert witness summary did not adhere to COMAR 10.44.07.08(B)(1), which requires the parties to provide “[a] detailed written report summarizing the expert's testimony, which includes the opinion offered and the factual basis and reasons underlying the opinion,” because “counsel representations regarding the experts' testimony is not an expert report.” (Emphasis in original). The prosecutor also claimed that the summary was inadequate, because it “fail[ed] to state the opinion offered regarding any of the 29...