Sizemore v. Texas State Bd. of Dental Examiners

• Decision Date: 28 December 1987
• Docket Number: No. 05-86-00189-CV,05-86-00189-CV
• Citation: 747 S.W.2d 389
• Parties: Charles SIZEMORE, D.D.S., Appellant, v. TEXAS STATE BOARD OF DENTAL EXAMINERS, Appellee.
• Court: Texas Court of Appeals

Page 389

747 S.W.2d 389

Charles SIZEMORE, D.D.S., Appellant, v. TEXAS STATE BOARD OF DENTAL EXAMINERS, Appellee.

No. 05-86-00189-CV.

Court of Appeals of Texas Dallas.

Dec. 28, 1987.

Rehearing Denied March 10, 1988.

Robert W. Gauss, Austin, for appellant.

Joe Alfred Izen, Houston, for appellee.

Before the Court en banc.

HOWELL, Justice.

For prescribing narcotic drugs, primarily Percodan, where "not necessary or required," and for "grossly over-prescribing" those drugs, and for failing to make complete notations of narcotic prescriptions on the patients' dental records, the Texas State Board of Dental Examiners suspended the license of Charles W. Sizemore, D.D.S., for five years, all but 120 days of which was probated, and revoked his certificate to prescribe narcotics. The trial court upheld the Board's decision and he appeals to this court. We find that the revocation is not supported by substantial evidence and reverse.

The Controlled Substances Act requires that duplicate copies of all scheduled prescriptions be forwarded to the Texas Department of Public Safety by the pharmacist who fills the prescription. This case was brought to the Board's attention by the DPS after a routine review of duplicate prescriptions emanating from appellant's office. A staff investigator for the Board then went to appellant's office and examined his case files at length. The Board thereafter held a hearing and faulted appellant for his treatment of three patients:

(1) Danny McKay was treated by appellant for jaw pain. For eleven months, from September 10, 1981, to August 23, 1982, appellant gave McKay twelve prescriptions for a total of 280 tablets of Percodan, a Schedule II controlled substance. ¹ Appellant noted only two prescriptions for a total of 50 tablets on McKay's dental record.

(2) Roxanne Sabato Schultz sought treatment for dental problems that appellant concluded were complicated by the presence of infection. For over five months, from January 4 through June 16, 1983, appellant gave Schultz thirteen prescriptions, eleven for Percodan and two for Tylox, also a Schedule II substance, for a total of 220 tablets, omitting to note four of those prescriptions totalling 60 tablets on Schultz's records.

(3) Kenneth Cook received 21 prescriptions for a total of 382 tablets of Percodan from appellant over a five-month period from December 28, 1982, to June 2, 1983. During this time, appellant prescribed 121 tablets over a period of less than two months. However, the record keeping with respect to patient Cook is unchallenged.

By its order, the Board made, in substance, the foregoing findings of fact and then entered the following "conclusions of law":

1. Dr. Sizemore is guilty of prescribing controlled substances not necessary or required in the practice of dentistry and where the prescription and use of such would promote and further addiction in violation of Article 4551h.

2. Dr. Sizemore is guilty of dishonorable conduct in that he grossly over-prescribed narcotic drugs in violation of Article 4549, Section 2(c), as defined by Board Rule No. 382.19.21.001(8).

3. Dr. Sizemore is guilty of failing to make the prescription of narcotic drugs a part of his patient's dental records as required by Board Rule No. 382.19.15.004.

We hold that the conclusions in the first and second paragraphs are not supported by substantial evidence.

It is to be noted that conclusion number one is in the conjunctive, but the statute is in the disjunctive, to-wit:

It shall be unlawful for a dentist to prescribe or deliver to or for any person ... any controlled substances not necessary or required, or where the use or possession of same would promote or further addiction thereto,....

TEX.REV.CIV.STAT.ANN. art. 4551h (Vernon Supp.1986). We would be required to uphold conclusion one if we found substantial evidence that the prescriptions were either (1) not necessary or required, or (2) promoted or furthered addiction. However, there is no substantial evidence to support either part of the Board's first conclusion.

The Board's only witness was Dr. Arthur H. Jeske. His testimony related to the propriety of appellant's drug prescriptions. He based his testimony upon his review of appellant's treatment records. He neither interviewed nor examined the patients themselves. The patients were not called. Neither did the Board's investigator testify. Patients Schultz and Cook suffered from oral infections, which appellant treated with antibiotics. Patient McKay suffered from an ailment associated with the temporal mandibular joint in his lower jaw, known as TMJ.

On direct examination, Dr. Jeske expressed his expert opinion that appellant's prescriptions exceeded the "generally accepted dosages" for dental treatment, but on cross-examination, he made several significant qualifications to this testimony. He also testified that, in his opinion, another course of treatment not involving analgesics would have been more suitable for patient McKay. He further testified by way of conclusion that the course of medication given "could promote or further addiction;" there was no testimony that it would do so. Neither did he give any specifics; he failed to state what dosages, if any, would have been the maximum safe and proper amounts under the conditions shown.

Appellant's testimony was that all drugs prescribed were reasonably needed for the proper care and treatment of the patients. He testified that Mr. McKay had been a regular patient for several years prior to the onset of TMJ problems. Mr. McKay repeatedly came to appellant's office unannounced and without prior notice complaining of intense pain. Appellant would interrupt his schedule, would briefly examine him, would prescribe Percodan to relieve the symptoms, and would provide Mr. McKay with an appointment for treatment. Thereafter, Mr. McKay usually broke the appointment only to repeat his emergency appearance when pain again manifested itself. Appellant testified that he would have refused to treat patient McKay long before he did sever relations with this patient except for the established relationship.

Concerning patients Schultz and Cook, appellant testified that they both had teeth that were badly infected and painful when they first consulted with him. The teeth could not be successfully treated and prostheses applied until the infections were cleared up. Antibiotics were prescribed and, pending the clearance of the infections, Percodan was prescribed for the control of the pain. Following the disappearance of the respective infections, dental restorations were completed and the patients were released.

Appellant testified that none of the patients was in danger of addiction. He testified that he instructed them each not to take more than four tablets of Percodan in any twenty-four hour period. The average usage by each patient was much lower. Appellant testified that the early warning sign of drug dependency is a patient who consumes the prescribed medication at the maximum allowable rate or faster and who immediately demands an additional prescription. As appellant demonstrated from the State's exhibits, all of the patients voluntarily refrained from usage at or near the maximum prescribed levels indicating, according to appellant's testimony, an ability to engage in self-control and a healthy attitude toward narcotic drugs.

It is not our province to weigh the evidence. The only question before us is whether the testimony before the Board constituted substantial evidence in view of the nature and purpose of the proceedings being had. In other words, was there a sufficient basis in the evidence for the Board to conclude that appellant's license to practice dentistry should be suspended or revoked or that he should be otherwise disciplined? We conclude that the evidence contained no such basis.

Before analyzing the evidence further, we first consider the standard to be employed.

[T]he practice of dentistry is a lawful profession,.... [T]he right or privilege to engage in it, once it is lawfully acquired, is a right or privilege protected by the due process clauses of the state and federal constitutions....

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The right to practice a profession has been called a property right, but it is more.... There is moreover a prestige and good name and should be a pride attached to the practice of an honorable profession superior to any material possessions. To cancel a professional license is to take the entire capital stock of its possessor and to leave him in most instances the equivalent of a bankrupt. But it does much more than this; it takes from him his professional standing and in a manner whatever good name he has, which leaves him poor indeed.

Francisco v. Board of Dental Examiners, 149 S.W.2d 619, 622 (Tex.Civ.App.--Austin 1941, writ ref'd) (quoting Waller v. State, 68 S.W.2d 601, 605 (Tex.Civ.App.--Amarillo 1934, writ ref'd)).

Arrayed against the interest of the individual is the interest of the public. The public must be protected from negligence, incompetence and wilful misconduct in the practice of the profession. Texas State Board of Dental Examiners v. Fenlaw, 357 S.W.2d 185, 189-90 (Tex.Civ.App.--Dallas 1962, no writ). However, due process places limitations upon the power to regulate, that limitation being the legitimate interest of the public in controlling the conduct of the individual practitioner. Waller v. State, 68 S.W.2d 601, 603-04 (Tex.Civ.App.--Amarillo 1934, writ ref'd). His license may be revoked or suspended or otherwise restricted only upon proof of conduct injurious to the public welfare; proof must be made of negligence, incompetence, or wilful misconduct. Even though the applicable statutes and rules do not expressly provide to this effect, we must construe them as implying such a requirement, else they offend the constitution.

We also point out that an action of this nature is necessarily punitive in effect. State Board of Dental...