Nelson v. South Dakota State Bd. of Dentistry, s. 16848

• Decision Date: 02 January 1991
• Docket Number: Nos. 16848,16859,s. 16848
• Parties: Dr. Gayle V. NELSON, Appellee, v. SOUTH DAKOTA STATE BOARD OF DENTISTRY, Appellant.
• Court: South Dakota Supreme Court

Page 621

464 N.W.2d 621

Dr. Gayle V. NELSON, Appellee, v. SOUTH DAKOTA STATE BOARD OF DENTISTRY, Appellant.

Nos. 16848, 16859.

Supreme Court of South Dakota.

Argued May 21, 1990.

Decided Jan. 2, 1991.

Thomas J. Welk and Michael S. McKnight, Sioux Falls, for appellee.

John W. Bastian, Deputy Atty. Gen., Pierre, for appellant.

STEELE, Circuit Judge.

The South Dakota State Board of Dentistry (Board) appeals from a circuit court judgment reversing Board's final order in a disciplinary proceeding. We reverse and reinstate Board's final order.

FACTS AND PROCEDURAL HISTORY

Dr. Gayle Nelson (Dr. Nelson) is a licensed dentist in Sioux Falls, South Dakota, specializing in the dental treatment of children and adolescents. Board brought disciplinary proceedings against Dr. Nelson, alleging that between January 1984 and November 1987, he allowed assistants to administer and monitor nitrous oxide sedation in violation of certain administrative rules. In June 1988, there were three dentists and six assistants in Dr. Nelson's office. Although it is unclear from the record, the office apparently included at least one dentist and several assistants during the time period in question.

Dr. Nelson has used nitrous oxide in his practice for sedation purposes for several years. He is authorized to do so pursuant to ARSD 26:43:04:12. Nitrous oxide is mixed with oxygen and administered by placing a mask over the nose and mouth of the patient. The percentage of nitrous oxide can be controlled; the higher the percentage of nitrous oxide to oxygen, the higher the sedation properties of the mixture. A dentist examines a patient and obtains a medical history before treatment begins. Nitrous oxide is usually administered unless a notation is made in the patient's file by the dentist.

Any one of Dr. Nelson's dental assistants actually places the mask on the patient and operates the dispenser. Although the level of the nitrous oxide-oxygen mixture to be administered is usually determined by the dentist, the assistants on some occasions increase the dosage on their own volition. A dentist, although always in the room or in an adjoining office, does not always stand in proximity to the patient when nitrous oxide is being administered. The patient is usually monitored by an assistant.

Dr. Nelson uses nitrous oxide for "conscious sedation," as that term is defined by ARSD 20:43:04:10; that is, for purposes of controlling pain or apprehension, or both, without rendering the patient unconscious.

At the disciplinary proceeding, the only witness Board called was one of Dr. Nelson's assistants. She testified that the assistants usually placed the nitrous oxide mask on the patients; that a dentist was not always in the immediate vicinity of the patient; that the assistant on rare occasions altered the mixture of the nitrous oxide and oxygen on her own volition and usually monitored the patient. Dr. Nelson testified that nitrous oxide can cause such adverse reactions in children as nausea, upset stomach, and vomiting, although he has never encountered a serious problem with side effects in patients.

Board determined that the administration of nitrous oxide was a procedure which may not be delegated under ARSD 20:43:04:05.01(3), and that Dr. Nelson did delegate that procedure in violation of the rule. As a result, Board suspended Dr. Nelson's license indefinitely.

Dr. Nelson appealed Board's decision to the circuit court, which reversed Board, holding that Appeal of Schramm, 414 N.W.2d 31 (S.D.1987) was dispositive because Board presented no expert testimony that the procedure employed by Dr. Nelson in administering nitrous oxide resulted in unacceptable patient care. Board appeals the circuit court's decision contending that Appeal of Schramm does not apply to the facts of this case. By notice of review, Dr. Nelson seeks to reverse Board's decision on the alternative grounds that Board's findings of fact and conclusions of law are arbitrary and capricious and are affected by error of law.

We hold that the circuit court erred in holding that Appeal of Schramm is dispositive of this case; the decision of the Board was not arbitrary, capricious, or affected by error of law.

ISSUE ONE

WHETHER EXPERT TESTIMONY WAS REQUIRED TO SHOW THAT DR.

NELSON ENGAGED IN OR PERMITTED THE PERFORMANCE OF

UNACCEPTABLE PATIENT CARE?

In Appeal of Schramm, supra, a dentist was brought before Board after several complaints were registered by other dentists alleging that Dr. Schramm rendered inadequate treatment to his patients. Board held that in 13 of 15 cases inadequate care had been rendered, and Dr. Schramm's license was suspended indefinitely. Board used its own expertise (five of seven members are dentists) in determining that Dr. Schramm's patient care was unacceptable. There was no expert testimony presented about the standard of patient care in the community or that Dr. Schramm had negligently or intentionally violated that standard. Although SDCL 36-6-8.4 authorizes Board to establish competency standards by rule, it had not done so.

The circuit court held that expert testimony was not necessary to establish a standard of care or its violation and Dr. Schramm appealed. We held that when competency standards are not set by rule, the tort standard (that degree of skill ordinarily possessed by dentists of good standing engaged in the same type of practice in the same or similar locality) applies. We further held that experts must testify about this standard and its violation so that an appellate court can effectively review the record.

Board's notice of hearing in this case stated:

This hearing is held to determine the following issues in accordance with SDCL 36-6-44(3):

Whether the practitioner has engaged in or permitted the performance of unacceptable patient care by himself or by auxiliaries working under his supervision due to his deliberate or negligent act or acts or failure to act, to-wit: whether the practitioner permitted dental assistants to administer and/or monitor nitrous analgesia during a period of time from on or about January 11, 1984 to on or about November 18, 1987.

The first phrase of the notice was a verbatim recital of 36-6-44(3); the second phrase framed the factual issue.

ARSD 20:43:04:05.01(1) provides:

Procedures that may not be delegated. Procedures that may not be delegated by a dentist to dental auxiliaries include the following: (3) ... the administration of analgesia, except for topical anesthetic ...

The issue is not whether Dr. Nelson was negligent in the procedure he followed in the administration of nitrous oxide, but whether he violated ARSD 20:43:04:05.01(3) in delegating its administration to dental assistants. The standard alleged to have been violated has been set by rule and the only issues are the construction of the rule and whether Dr. Nelson's conduct violated it; negligence is not relevant. Therefore, Appeal of Schramm does not apply to the facts of this case.

ISSUE TWO

WHETHER THE BOARD'S DECISION WAS ARBITRARY AND CAPRICIOUS OR

AFFECTED BY ERROR OF LAW?

The dispute in this case involves the construction of ARSD 20:43:04:05.01(3), supra.

Dr. Nelson contends that the meaning of the term "analgesia" as used in the rule is ambiguous; that the ambiguity should be construed in his favor; that Board's interpretation of the meaning of the term "analgesia" is contrary to the evidence; and that its decision is arbitrary, capricious or affected by error of law, contrary to SDCL 1-26-36.

Board construed the term "analgesia" to include the administration of nitrous oxide to a patient, regardless of the dosage. Dr. Nelson asserts that the term does not refer to the administration of a substance, but to the state of sedation where there is insensibility to pain without loss of consciousness. He contends that the rule does not prohibit delegation of the administration of nitrous oxide as long as: 1) the dosage of nitrous oxide is below the level at which a state of analgesia is achieved, and 2) the attending dentist exercises the direct supervision and full responsibility required by ARSD 20:43:04:05, which deals with delegable procedures.

The Board concluded that nitrous oxide is an analgesic drug, and that the term "analgesia" as used in the rule is a generic term which includes the administration of nitrous oxide in any dosage; therefore, the administration of nitrous oxide is a non-delegable procedure.

The construction of an administrative rule is a question of law which is fully reviewable by the court without deference to the agency determination. Appeal of Schramm, supra; Permann v. South Dakota Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987); Coe v. Bd. of Regents of the Univ. of Wis., 140 Wis.2d 261, 409 N.W.2d 166 (Wisc.App.1987).

Although the final construction of a rule is a question of law, an agency is usually given a reasonable range of informed discretion in the interpretation and application of its own rules when the language subject to construction is technical in nature or ambiguous, or when the agency interpretation is one of long standing. Matter of Southeastern Minn. Cit. Action Coun., 359 N.W.2d 60 (Minn.App.1984); Iowa Fed. of Labor v. Dept. of Job Serv., 427 N.W.2d 443 (Ia.1988); Matter of Stone Creek Channel Improvements, 424 N.W.2d 894 (N.D.1988).

Administrative rules are subject to the same rules of construction as statutes. Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D.1982).

Where there is an ambiguity in an agency rule, a court must give effect to the agency's intention in promulgation of the rule, and must look to the object of the...