Oppenheim v. Com., Dept. of State, Bureau of Professional and Occupational Affairs, State Dental Council and Examining Bd.
| Decision Date | 06 May 1983 |
| Citation | 459 A.2d 1308,74 Pa.Cmwlth. 200 |
| Parties | Kenneth R. OPPENHEIM, D.D.S., Steven M. Sloane, D.D.S., Petitioners, v. COMMONWEALTH of Pennsylvania, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE DENTAL COUNCIL AND EXAMINING BOARD, Respondents. |
| Court | Pennsylvania Commonwealth Court |
Page 1308
v.
COMMONWEALTH of Pennsylvania, DEPARTMENT OF STATE, BUREAU OF
PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE
DENTAL COUNCIL AND EXAMINING BOARD, Respondents.
Decided May 6, 1983.
Page 1310
[74 Pa.Cmwlth. 202] Alan M. Lieberman, Susan W. Schneider, Schnader, Harrison, Segal & Lewis, Philadelphia, John J. Flynn, Legal Office, David Felicio, Asst. Atty. Gen., Harrisburg, for petitioners.
Jerome P. Grossi, Asst. Counsel, Bureau of Professional and Occupational Affairs, Harrisburg, for respondents.
[74 Pa.Cmwlth. 201] Before ROGERS, CRAIG and MacPHAIL, JJ.
[74 Pa.Cmwlth. 202] CRAIG, Judge.
Dentists Kenneth R. Oppenheim and Steven M. Sloane appeal from orders of the State Dental Council and Examining Board which suspended their licenses for ninety days. We affirm.
Jean Gladfelter Prescott, a registered dental hygienist and former part-time employee of Drs. Oppenheim and Sloane, initiated the complaint process against both dentists in May of 1979, informing Nancy Miller, then a registered dental hygienist active in local, state and national hygienist associations and now a member of the board, that Drs. Oppenheim and Sloane were permitting dental assistants, who were not licensed as dental hygienists, to perform oral prophylaxis. Mrs. Miller informed Mrs. Prescott that she would discuss the matter with Dr. Reuben Miller, her husband and a member of the board. Based upon Dr. Miller's subsequent recommendation, Mrs. Prescott submitted a letter to the board on July 10, 1979, describing the alleged violations.
In December of 1979, the board apparently conducted an informal hearing to consider Mrs. Prescott's allegation; Chairman McDermott and board members Penzur, Vaughters, and Miller, apparently participated.
The board also apparently voted unanimously to convene a formal hearing and, on June 9, 1980, issued citations and notices of hearing prepared by Assistant Attorney General William H. Andring. Each citation charged:
Page 1311
[74 Pa.Cmwlth. 203] That Respondent as a regular part of his practice and as a part of his office policy, did during 1979 employ and regularly assign persons not licensed as dentists or dental hygienists to perform oral prophylaxis on his patients, in that he allowed said unlicensed persons to remove tartar deposits, accretions, and stains from the exposed surfaces of the teeth and directly beneath the free margin of the gums, and to make application of medicaments to the exposed surfaces of the teeth.
The board held a formal hearing on September 9, 1980; present for the board and participating in the final license-suspension vote were Chairman McDermott and members Penzur, Vaughters, Fox, Jacobson, Petrini, and Clark. Dr. McDermott announced that board members Reuben and Nancy Miller would not participate. Assistant Attorney General Andring prosecuted the case.
Based upon the testimony of Mrs. Prescott and Joseph Garlan, an investigator with the Bureau of Professional and Occupational Affairs who conducted a one-hour undercover investigation of the dentists' clinic, the board found that, among other things, two unregistered dental assistants were performing unsupervised oral prophylaxis, scaling and polishing on a regular basis, 1 and that one of the assistants cleaned investigator Garlan's teeth with an ultra-sonic scaler. 2
The board concluded that Drs. Oppenheim and Sloane had violated sections 3(i) and 10 of the Dental Law (the Act) 3 and accompanying regulations. 4
[74 Pa.Cmwlth. 204] Drs. Oppenheim and Sloane contend that (1) the evidence presented at the hearing is insufficient to sustain the board's suspension order, (2) the Dental Law and its regulations are unconstitutionally vague because the board has failed to define the term "medicaments," as allegedly required by statute, and (3) the procedures followed by the board were violative of the dentists' due process rights because of (a) an alleged commingling of prosecutorial and adjudicative functions by the board and (b) testimony by two board members received at the hearing.
Before we address those issues, we must comment upon the inartful state of the charges brought against both dentists by the Commonwealth and, regrettably, reproduced in the board's conclusions of law. As noted above, the charges accused the dentists of permitting unlicensed personnel "to perform oral prophylaxis ... in that [they] allowed said unlicensed persons to remove tartar deposits, accretions, and stains ... and make application of medicaments to the exposed surfaces of the teeth."
We have no doubt that by using the phrase "in that," the board equated "oral prophylaxis" with various elements of the prophylaxis procedure subsequently described. Presumably, by permitting unlicensed personnel to perform any one of the activities which constitutes an element of the oral prophylaxis process, e.g., stain removal from teeth, a dentist would be committing an unlawful act. Nevertheless, the board should draft its charges and conclusions with greater precision, remembering that the responsibility of ultimate review may be borne by persons not educated in dentistry.
Substantial Evidence
With dental board appeals, we limit our scope of review to determining if the board has committed an [74 Pa.Cmwlth. 205] error of law, violated constitutional rights, or failed to support any necessary finding of fact with substantial evidence. Administrative Agency Law, 2 Pa.C.S. § 704; State Dental Council and Examining Board v. Friedman, 27 Pa. Commonwealth Ct. 546, 549, 367 A.2d 363, 365 (1976). Weight and credibility of
Page 1312
the evidence are solely within the province of the factfinder. Kundrat v. State Dental Council and Examining Board, 67 Pa. Commonwealth Ct. 341, 447 A.2d 355, 359 (1982); Kunkle v. State Dental Council and Examining Board, 38 Pa. Commonwealth Ct. 254, 257-58, 392 A.2d 357, 358 (1978).Relying upon State Board of Medical Education and Licensure v. Grumbles, 22 Pa. Commonwealth Ct. 74, 347 A.2d 782 (1975), where we rejected lay testimony used by a medical licensure board to revoke a physician's license for alleged drug addiction, Drs. Oppenheim and Sloane contend that we should declare Mrs. Prescott's testimony similarly deficient because her part-time status and her physical vantage point for observation in the office afforded her an inadequate opportunity to determine if the clinic's unlicensed dental assistants were using restricted instruments or performing restricted procedures. Specifically, the dentists contend that Mrs. Prescott's observations were made in passing and from too great a distance to be dependable, that the instruments used by the dental assistants were in the patients' mouths and thus not subject to scrutiny, and that Mrs. Prescott could not determine if the assistants were administering prophy paste, which they may not use lawfully, or amalgloss, which they may.
There is substantial evidence of record, however, to support the board's finding and conclusion that two dental assistants were performing unsupervised oral prophylaxis on a regular basis; Mrs. Prescott testified that (1) as a licensed dental hygienist, she could recognize[74 Pa.Cmwlth. 206] the performance of a prophylaxis procedure and that she (2) witnessed the dentists instruct their unlicensed assistants to perform prophylaxis, (3) saw the assistants use an ultrasonic cleaner, scale mouths with scaling instruments, and take a polishing cup and polish teeth, and (4) observed this happening on a regular basis. 5
Moreover, Investigator Garlan, who made an appointment to have his teeth cleaned, substantially corroborated[74 Pa.Cmwlth. 207] Mrs. Prescott's testimony in layman's terms by testifying as follows:
Q. How did you know that she was cleaning your teeth?
A. How did I know? Well, when I did rinse my mouth, particles of dirt would--I would spit out.
Q. Did she indicate to you that she was cleaning your teeth?
A. Yes, she said she was going to clean my teeth with the ultrasonic scaler. I did not ask her what the machine was.
Page 1313
Q. And she stated it was an ultrasonic scaler?
A. Yes. (Emphasis added.) 6
Although it is true, as the dentists contend, that one of their unlicensed dental assistants may have been performing an amalgam polishing upon Investigator Garlan's fillings and not an unsupervised oral prophylaxis, the board was free to accept Mr. Garlan's testimony at face value. Kundrat 67 Pa. Commonwealth Ct. at 347-349, 447 A.2d at 359. Moreover, the board was free to reject the testimony of the dentists' expert witness, Robert G. Clarke, who questioned the ability of a trained dental auxiliary, including a dental hygienist such as Mrs. Prescott, to determine by observation from the clinic hallway the instruments used or procedures performed. Id.
Drs. Oppenheim and Sloane also contend that Mrs. Prescott's testimony is inherently suspect because of her employment experience with them. Grumbles 22 Pa. Commonwealth Ct. at 80, 347 A.2d at 786 (board must give consideration to [74 Pa.Cmwlth. 208] clear bias or interest of board's principal witnesses). The board considered Mrs. Prescott's potential for bias, recognizing that even though she may have filed her complaint for "unforgiving reasons," she also first notified Mrs. Miller of her concerns before the dentists terminated her employment or furnished statements which ultimately resulted in a denial of benefits from the Pennsylvania Unemployment Compensation Board.
Void for Vagueness
Drs. Oppenheim and Sloane also contend that the provisions used to suspend their licenses are unconstitutionally vague on their face and as applied because the Commonwealth charged both dentists with having permitted unregistered dental auxiliaries to use "medicaments," a term undefined by statute or regulation. Although...
To continue reading
Request your trial
-
Shah v. State Bd. of Medicine
...Appeal, 32 Pa.Commonwealth Ct. at 548, 380 A.2d at 501 (emphasis added); See also Oppenheim v. State Dental Council and Examining Board, 74 Pa.Commonwealth Ct. 200, 214-15, 459 A.2d 1308, 1316 (1983). Thus, under Withrow and Bruteyn, Dr. Perper's actions in presiding over the temporary susp......
-
Commonwealth v. Thompson
...to the use of words, we can never expect mathematical certainty from our language.”); Oppenheim v. State Dental Council and Examining Board, 74 Pa.Cmwlth. 200, 459 A.2d 1308, 1315 (1983). Where a vagueness challenge does not allege that the ordinance infringes First Amendment freedoms, “the......
-
Appeal of Office of Consumer Advocate
...functions, the mere appearance of prejudice may be enough to render an adjudication unconstitutional. Oppenheim v. Com., Dept. of State, Etc., 74 Pa.Commw. 200, 459 A.2d 1308, 1316 (1983); see, e.g., Burhoe v. Whaland, supra at 224, 356 A.2d at 659. Where they are commingled within an admin......
-
Lyness v. Com., State Bd. of Medicine
...of due process. In reaching this conclusion the Commonwealth Court relied heavily upon its own decision in Oppenheim v. Department of State, 74 Pa.Commw. 200, 459 A.2d 1308 (1983). Oppenheim held that a pre-hearing determination of probable cause by an administrative board did not result in......