Peckham v. Idaho State Bd. of Dentistry

• Decision Date: 21 June 2013
• Docket Number: No. 39758.,39758.
• Citation: 154 Idaho 846,303 P.3d 205
• Court: Idaho Supreme Court
• Parties: Lon N. PECKHAM, D.M.D., a licensed dentist in the State of Idaho, Plaintiff–Appellant, v. IDAHO STATE BOARD OF DENTISTRY, and Kevin T. Stock, as acting Board Chairman for the Idaho State Board of Dentistry, Defendants–Respondents.

154 Idaho 846

303 P.3d 205

Lon N. PECKHAM, D.M.D., a licensed dentist in the State of Idaho, Plaintiff–Appellant,

v.IDAHO STATE BOARD OF DENTISTRY, and Kevin T. Stock, as acting Board Chairman for the Idaho State Board of Dentistry, Defendants–Respondents.

No. 39758.

Supreme Court of Idaho, Coeur d'Alene, April 2013 Term.

June 21, 2013.

Featherston Law Firm, Chtd, Sandpoint, attorneys for Appellant. Brent C. Featherston argued.

Michael Kane & Associates, PLLC, Boise, attorneys for Respondents. Michael J. Kane argued.

W. JONES, Justice.

I. NATURE OF THE CASE

The Board of Dentistry (the "Board") fined a dentist for failing to adequately inform one of his patients before performing a procedure, and for publishing misleading advertising on his website. The district court affirmed the Board's decision, and the dentist appealed to this Court. We reverse because there was insufficient evidence to support the Board's conclusions.

II. FACTUAL AND PROCEDURAL BACKGROUND

Since 1986, Lon N. Peckham, D.M.D, has been licensed by the Board as a general dentist. At all relevant times he operated a solo practice called AIRO Dental in Post Falls, Idaho. This case is based on two separate chains of events. The first involves his treatment of Judy Malby, a patient who patronized his office between June of 2003 and February of 2007. The second involves an ongoing dispute with the Board regarding claims that Dr. Peckham made in a newspaper advertisement and on his website, although the charges here are based on only a single webpage.

Before the events that gave rise to this case, Dr. Peckham developed a phased treatment plan under which he was to place crowns on four of Malby's teeth. The allegations here involve only a left rear molar ("Tooth 18"). Malby is satisfied with the crowns on the other three teeth; those crowns were made from gold or porcelain fused to gold. Tooth 18 had been crowned some twenty years earlier, but Malby needed a new crown due to further decay.

In December of 2006, Dr. Peckham placed a silver amalgam buildup on Tooth 18 in preparation for the later installation of a porcelain-fused-to-gold crown. However, after Dr. Peckham built up Tooth 18, Malby asked if he could provide a less expensive crown. Dr. Peckham responded that he could place a "silver crown"¹ on the tooth.

Malby does not "remember the real conversation" with Dr. Peckham regarding the "silver crown." She is "sure there was some conversation" but cannot "remember anything that was talked about." She remembers only that the following pieces of information were not revealed: (1) that the crown would be "silver amalgam" as opposed to pure "silver"; (2) that silver amalgam is the same substance used for fillings; and (3) that the " silver crown" would be shaped directly in her mouth in a single visit, as opposed to manufactured in a lab and installed during a follow-up visit.

Before the "silver crown" was placed, Malby knew that it would be "less visually appealing than a porcelain crown." Nonetheless, she chose the "silver crown" for two reasons: (1) as a rear molar, the aesthetics of Tooth 18 were less important to her; and (2) she wanted to save money. Malby admitted that "[she] alone made the choice between a porcelain crown and a silver crown" and that "Peckham did not suggest or recommend one over the other." Dr. Peckham concedes that he may not have used the word "amalgam." According to Dr. Peckham, he uses the term "silver crown" because it is more understandable to patients. His unrebutted testimony was that he advised Malby that the "silver crown" would not last as long as a full gold or porcelain-fused-to-gold crown.

Dr. Peckham placed the "silver crown" on Tooth 18 in February of 2007. In July of 2008, the "silver crown" detached from Tooth 18. Malby first visited a dentist named Dr. Simon Prosser in the hopes that he could glue the "silver crown" back to Tooth 18. Dr. Prosser examined the "silver crown," determined that he could not re-attach it, and recommended an implant. In August, Malby sought a second opinion from Dr. Steven Bates, a general dentist licensed in Washington State who has practiced in Deer Park, Washington for thirty-five years. Bates also suggested an implant, but Malby opted for a buildup and new crown instead. In September of 2008, Malby filed an official complaint with the Board.

There is conflicting evidence about why the "silver crown" detached. Dr. Peckham's theory is that the underlying tooth structure further decayed because Malby failed to practice good dental hygiene and make follow-up appointments. He finds support in the fact that Dr. Prosser observed "recurrent decay" on what remained of Tooth 18. However, Dr. Bates stated there was no decay and that the remaining tooth structure was "pretty clean." The hearing officer made no findings on this question, which in any event is irrelevant to the issue of whether Malby received sufficient information about the "silver crown" procedure.

At some point in late 2007 or early 2008, Dr. Peckham published an advertisement in the Coeur d'Alene Press titled "Shocking Research From World Authority Finds a Link Between Dementia and Missing Teeth. "² The advertisement stated that a recent study showed that "people with no teeth or very few teeth had a higher rate of dementia. " After receiving a complaint regarding the advertisement, the Board sent a letter to Dr. Peckham demanding that he immediately cease "[t]his type of advertising." The Board's letter claimed that the advertisement "may be false, or misleading or deceptive to the public and is not readily susceptible to verification" (an apparent reference to I.D.A.P.A. 19.01.01.046.02 ) and that the advertisement was "intended to take advantage of the fears and emotions of a particularly susceptible type of patient" (an apparent reference to the former I.D.A.P.A. 19.01.01.046.02(f) ).³

Only a single webpage from the AIRO Dental website is alleged as a basis of the charges at issue here. That page, which is titled "THE TRUTH ABOUT DENTURES" (the "Dentures Page"), begins with the following disclaimer:

Can you handle the truth?

The State Dental Board doesn't think you can!!!

WARNING: If you are easily scared and prone to make rash decisions without understanding the risks as well as the benefits, don't read any farther [sic ]. This report is only suitable for rational adults.

The Dentures Page goes on to state that "our political dental organizations don't think you can handle the truth, and are actively trying to hide it from you!" It explains that Dr. Peckham published a "public service ad in our local newspaper," but "two weeks later [he] received a ‘cease and desist reprimand’ from the state dental board accusing [him] of taking unfair advantage of ‘vulnerable individuals.’ " Although he had placed the warning as a precautionary measure to ensure compliance with the former I.D.A.P.A. 19.01.01.046.02(f), Dr. Peckham "firmly believe[d] that the public has a right to know, and that we as professionals have a duty to inform about any health dangers we may know or learn of." The Dentures Page then makes a number of factual assertions, including that "[m]issing teeth are associated with dementia" and that "[l]ong term denture use leads to ... [i]ncreasing risk of diabetes ... [and] [i]ncreasing risk of heart disease." There are no citations on the Dentures Page. However, the Dentures Page acknowledges that "to be perfectly honest, we don't know exactly why all these facts are true."

Although it was not mentioned in the Board's Amended Administrative Complaint, both parties extensively discuss the so-called "Denture Truth Report." The Denture Truth Report apparently can be viewed on the AIRO Dental website, and also was available to interested individuals upon request in hard-copy form. It is similar to the Dentures Page, but includes an addendum listing many articles from peer-reviewed scientific journals on which Dr. Peckham supposedly relied when making his factual claims about dentures. Only one of those articles, Pamela Sparks Stein et al., Tooth Loss, Dementia and Neuropathology in the Nun Study, 138 J. Am. Dental Ass'n 1314 (2007) (hereinafter the "Stein Article"), is included as part of the record. The Stein Article reports a longitudinal study of the dental and cognitive health of a group of Roman Catholic nuns. It found that there is a correlation between a low number of teeth and the onset of dementia late in life, but cautioned that causation should not be inferred.

In April of 2009, the Board filed its Administrative Complaint against Dr. Peckham based on his alleged failure to (1) "advise [Malby] in understandable terms of the treatment to be rendered, i.e., providing a large amalgam build up rather than a silver crown," and to (2) "inform [Malby] of the proposed treatment and any reasonable alternatives, and ... to involve [her] in treatment decisions ... [by] providing a large amalgam build up when [she] expected to receive a silver crown." In December the Board filed its Amended Administrative Complaint. In addition to the allegations listed above regarding the Malby Matter, the Board further alleged that Dr. Peckham made misleading representations on his website related to (1) the correlation between denture use and various ailments, and (2) his suggestion that the Board was trying to hide the "truth" about that correlation. These allegations were based on the Dentures Page only, not on the newspaper advertisement or the Denture Truth Report. The Board requested the revocation of Dr. Peckham's license and a fine of up to $40,000.

A hearing was held in July of 2010. During the hearing, the Board offered two definitions of a "crown." According to Dr. Blaisdell, a licensed general dentist who has practiced for thirty years in Caldwell, Idaho, a crown is: "[a] substitute or a replacement for the top of the tooth when it becomes damaged or too weak to be able to support the occlusive forces [i.e.] the biting forces of...