Shah v. Ariz. State Bd. of Dental Examiners

• Decision Date: 04 November 2014
• Docket Number: No. 1 CA-CV 13-0488,1 CA-CV 13-0488
• Parties: NISHITH S. SHAH, Plaintiff/Appellant, v. ARIZONA STATE BOARD OF DENTAL EXAMINERS, Defendant/Appellee.
• Court: Arizona Court of Appeals

NISHITH S. SHAH, Plaintiff/Appellant, v. ARIZONA STATE BOARD OF DENTAL EXAMINERS, Defendant/Appellee.

No. 1 CA-CV 13-0488

ARIZONA COURT OF APPEALS DIVISION ONE

November 4, 2014

NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

Appeal from the Superior Court in Maricopa County

No. LC2011-000735-001

The Honorable Crane McClennen, Judge

AFFIRMED

COUNSEL

Smith Law Group, Tucson

By Christopher J. Smith, E. Hardy Smith, Kathleen Leary

Counsel for Plaintiff/Appellant

Arizona Attorney General's Office, Phoenix

By Michael Raine

Counsel for Defendant/Appellee

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.

JONES, Judge:

¶1 Nishith S. Shah, a licensed dentist, appeals the trial court's judgment affirming the decision of the Arizona Board of Dental Examiners (the Board) finding Shah engaged in unprofessional conduct and ordering him to complete sixteen hours of continuing education. Shah argues the Board's administrative proceedings denied him due process and challenges the Board's factual findings. Shah also contends the imposed penalty was excessive. For the following reasons, we affirm.

FACTS & PROCEDURAL HISTORY

¶2 On November 17, 2010, Shah was performing oral surgery in his office on sixty-eight-year-old C.N. During the surgery, and while C.N. was under intravenous sedation, his blood oxygen saturation level suddenly dropped, and he went into asystole.¹ Shah and his surgical team commenced resuscitation measures, including three attempts to get "a shockable rhythm," but C.N. did not recover. Paramedics promptly transported C.N. to the hospital, where he was pronounced dead.

¶3 Through counsel, Shah self-reported the incident to the Board on November 29, 2010, and provided copies of C.N.'s surgical records. Those records, made contemporaneously with the surgery, consisted of three form "anesthesia sheets" containing handwritten "opnote[s]" and other notations regarding C.N.'s vital signs in ten-minute increments. The Board initiated a complaint and investigation based upon the reported incident, which contained two allegations: "Failure to report adverse occ[urrence]" and "Adverse Occurrence/Sedation."

¶4 The Board notified Shah that a Board-appointed panel (Panel) sought an informal interview (Panel Interview) for the purpose of investigating and determining the validity of the allegations. The Board'snotice (Notice) informed Shah that the allegations, "if proven true, could constitute Unprofessional Conduct" under Arizona Revised Statutes (A.R.S.) section 32-1201(21)(n)² (defining "unprofessional conduct" as "[a]ny conduct or practice that constitutes a danger to the health, welfare or safety of the patient or public"), and listed the range of possible disciplinary and non-disciplinary measures. The Notice further advised Shah he would have the opportunity, at the Panel Interview, to present witnesses and evidence relating to the allegations, and that he was entitled to request from the Board factual information it would use in making its determination. Finally, the Notice informed Shah he had the legal right to refuse to cooperate with the Board in the informal interview process, in which case the matter would proceed to a formal hearing. See A.R.S. § 32-1263.02(C) (2008).³

¶5 Shah did not request a formal hearing; instead, he submitted a nine-page written response to the allegations and elected to proceed with the informal process. Shah then requested and obtained a continuance of the Panel Interview due to a conflict with his attorney's schedule. He later submitted a second request for a continuance, again based upon his counsel's unavailability, which the Board denied. Shah then appeared at the Panel Interview with a different attorney from the same firm. He testified, but did not present any other witnesses or evidence.

¶6 Following the interview, the Panel issued a report summarizing its factual findings and recommendations to the Board. The Panel recommended the Board dismiss the allegation of failure to report an adverse occurrence, apparently accepting Shah's explanation that the calculation of the ten-day period to report was extended by the Thanksgiving holiday, as the Board office was closed. Regarding the allegation of adverse occurrence/sedation, the Panel (1) identified deficiencies in Shah's record-keeping during C.N.'s surgery, (2) foundShah was not aware of a Federal Drug Administration (FDA) black box warning⁴ relating to a drug Shah administered to C.N. during the procedure, and (3) concluded Shah failed to follow pharmacologic protocol when C.N. went into asystole. The Panel recommended the Board conclude these facts amounted to unprofessional conduct, but acknowledged they were not likely causally related to C.N.'s death. The Panel therefore recommended discipline in the form of twelve and sixteen hours, respectively, of continuing education in the areas of Advanced Cardiac Life Support (ACLS) and pharmacology agents used in general anesthesia.

¶7 By letter to the Board, Shah objected to the Panel's report and requested his case be dismissed or, alternatively, the Board issue a non-disciplinary letter of concern. In response, the Panel investigator clarified several points, but affirmed its recommended findings to the Board.

¶8 Shah appeared at a meeting of the Board, to challenge the Panel's recommended findings and disposition. After hearing Shah's arguments and reviewing the investigative report, the Board voted to accept the Panel's factual findings with minor clarifications,⁵ adopted the conclusion of unprofessional conduct, and ordered sixteen hours of continuing education in the area of pharmacology agents used in general anesthesia.

¶9 The Board denied Shah's request for a rehearing, and he appealed to the trial court pursuant to the Administrative Review Act. See A.R.S. §§ 12-901 to -914. The court affirmed the Board's decision, and Shah timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-913 and -2101(A)(1).

DISCUSSION

I. Standard of Review

¶10 In reviewing an administrative agency's decision, the trial court "shall affirm the agency action unless after reviewing the administrative record and supplementing evidence presented at the evidentiary hearing the court concludes that the action is not supported by substantial evidence, is contrary to law, is arbitrary and capricious or is an abuse of discretion." A.R.S. § 12-910(E). Arbitrary and capricious agency action has been described as "'unreason[ed] action, without consideration and in disregard for facts and circumstances.'" Petras v. Ariz. State Liquor Bd., 129 Ariz. 449, 452, 631 P.2d 1107, 1110 (App. 1981) (quoting Tucson Pub. Sch., Dist. No. 1 of Pima Cnty. v. Green, 17 Ariz. App. 91, 94, 495 P.2d 861, 864 (1972)). "The court must defer to the agency's factual findings and affirm them if supported by substantial evidence." Gaveck v. Ariz. State Bd. of Podiatry Exam'rs, 222 Ariz. 433, 436, ¶ 11, 215 P.3d 1114, 1117 (App. 2009) (citations omitted). "If an agency's decision is supported by the record, substantial evidence exists to support the decision even if the record also supports a different conclusion." Id. (citing DeGroot v. Ariz. Racing Comm'n, 141 Ariz. 331, 336, 686 P.2d 1301, 1306 (App. 1984)).

¶11 When we review the trial court's ruling affirming an administrative decision, we engage in the same process, "independently examin[ing] the record to determine whether the evidence supports the judgment." Webb v. State ex rel. Ariz. Bd. of Med. Exam'rs, 202 Ariz. 555, 557, ¶ 7, 48 P.3d 505, 507 (App. 2002) (citing Carley v. Ariz. Bd. of Regents, 153 Ariz. 461, 463, 737 P.2d 1099, 1101 (App. 1987)). As a result, "we reach the underlying issue of whether the administrative action was illegal, arbitrary, capricious or involved an abuse of discretion." See Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods., Inc., 167 Ariz. 383, 386, 807 P.2d 1119, 1122 (App. 1990).

¶12 Whether substantial evidence exists is a question of law for our independent determination. See id. at 387, 807 P.2d at 1123. However, we view the evidence in the light most favorable to upholding an administrative decision. Special Fund Div. v. Indus. Comm'n, 182 Ariz. 341, 346, 897 P.2d 643, 648 (App. 1994). Additionally, we review constitutional issues, including an alleged violation of due process, de novo. See Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430, ¶¶ 12-13, 153 P.3d 1055, 1059 (App. 2007).

II. Due Process: Notice & Opportunity to be Heard

¶13 Shah first argues the Panel Interview violated his procedural due process rights because the Board failed to give him "any explanation of the investigation the . . . [P]anel would be conducting, the allegations against him, or the standard of care to be applied in the Panel's assessment or in the Board's decision regarding discipline."⁶ While neither party addressed the substance of Comeau v. Arizona State Board of Dental Examiners, 196 Ariz. 102, 993 P.2d 1066 (App. 1999), we find the case and its analysis controlling here, and hold that the investigative interview in this case satisfied the requirements of procedural due process.

¶14 It is true that Shah has a protected interest in his dental license, and he may not be deprived of that interest without due process of law. Id. at 106, ¶ 18, 993 P.2d at 1070. "When a professional license is at stake, 'the State's interest must justify the degree of infringement which ensues from the sanction, and appropriate procedures must be used to guard against arbitrary action.'" Id. at ¶ 19 (quoting Schillerstrom v. State, 180 Ariz. 468, 471, 885 P.2d 156, 159 (App. 1994)). But "'the right to pursue [his] profession is subject to the paramount right of the state under its police powers to regulate business and professions in order to protect the public...