State Board of Dental Examiners v. Miller

• Decision Date: 18 January 1932
• Docket Number: 12668.
• Parties: STATE BOARD OF DENTAL EXAMINERS et al. v. MILLER.
• Court: Colorado Supreme Court

8 P.2d 699

90 Colo. 193

STATE BOARD OF DENTAL EXAMINERS et al. v. MILLER.

No. 12668.

Supreme Court of Colorado, En Banc.

January 18, 1932

Rehearing Denied Feb. 23, 1932.

Error to District Court, City and County of Denver; E. V. Holland Judge.

Certiorari by John Henry Miller against the State Board of Dental Examiners of the State of Colorado and others. To review an adverse judgment, the State Board of Dental Examiners of the State of Colorado and others bring error.

Reversed and remanded, with instructions.

John S. Underwood, Former Attorney General Clarence L. Ireland, Atty. Gen., A. L. Olson, Asst. Atty Gen., and Charles H. Haines, Sp. Asst. Atty. Gen., for plaintiffs in error.

Horace N. Hawkins and E. L. Wood, both of Denver (J. C. Stevenson of San Francisco, Cal., of counsel), for defendant in error.

ADAMS C.J.

This case concerns the revocation by the state board of dental examiners of the licenses of the following dentists to practice their profession in the state of Colorado: Drs. John H. Miller, Charles W. Patch, and Joseph R. Walsh. They took the matter to the district court for review on writs of certiorari. The court reversed the action of the board, and the board and its members bring error to review the judgment of the court. The opinion herein should be read in connection with State Board of Dental Examiners v. Savelle, (Colo.) 8 P. (2d) 693. When not otherwise designated we shall refer to the state board of dental examiners and its members (plaintiffs in error) in their official capacity as the board, or dental board, and Miller, Patch, and Walsh (the defendants in error) as the dentists.

The substance of the charge against the accused dentists, sustained by the board, is that such dentists were guilty of unprofessional and dishonorable conduct and gross violation of their professional duties in the following particulars:

(1) Miller and Walsh accepted employment and practiced dentistry under Painless Parker Dentist, a California corporation, not licensed and not entitled to a license to practice dentistry in this state. The time that this alleged offense was committed was Before such practice had been declared unlawful, in People v. Painless Parker Dentist, 85 Colo. 304, 275 P. 928.

(2) Miller, Patch, and Walsh accepted employment and practiced dentistry either under Painless Parker Dentist (hereinafter called the painless company) or its successor, the Parker Dental System Company, a Delaware corporation (hereinafter called the system company), not licensed and not entitled to a license to practice dentistry in this state. This alleged offense was committed after this court had declared such practice to be unlawful.

(3) Miller, Patch, and Walsh knowingly aided and abetted the system company in unlawfully practicing dentistry in Colorado.

(4) Miller conducted the dental business in his own name or in the name of J. H. Miller and associates, for the purpose of concealing the fact that the system company had an interest in, and partial or entire control and management of, said business.

(5) Miller, Patch, and Walsh had, for the purpose of attracting patronage, used false and misleading advertisements, stating that they used the 'E. R. Parker System,' intending to convey the idea that it was a superior system of dentistry, whereas there was no such thing as the 'E. R. Parker System' of dentistry.

We shall comment, as briefly as possible, on some phases of the evidence, under two general topics: First, as to the corporation feature of the practice of dentistry, and, second, as to methods of advertising. Counsel for the dentists claim that the system company is not so practicing, but the attorneys for the board assert that such company is doing so by circumlocution, aided and abetted by the three dentists here involved.

The following excerpts from the evidence are on the issues thus tendered:

Exhibit 2 is a certified copy of the articles of incorporation of the system company in Delaware. Its objects and purposes, among other things, are as follows:

'To provide clinics, consultation rooms and other facilities for proper dental and surgical attendance, and medicine and all other things and appliances of a dental and surgical character.

'To provide accommodation for the treatment and care of patients.

'To employ physicians, dentists and surgeons who shall carry on the practice of medicine, dentistry and surgery.'

Miller conducts the Denver dental offices; Patch and Walsh are his assistants. They sometimes go by the name of 'Dr. J. H. Miller and Associates,' and the three perform the dental work of the office. Two instruments in writing purport to show the agreement between the system company and Miller. They are both dated January 1, 1929; one of them is called a 'lease,' with the company as lessor and Miller as lessee; the other is denominated a 'license,' with the company as licensor and Miller as licensee. It appears that they are similar to numerous other agreements between the system company and dentists in other states.

In some way the system company acquired the lease on the premises in Denvey, formerly occupied for dental purposes by the painless company, and now used by the accused dentists, either for themselves or the system company, as the case may be. The latter then leased or sublet the premises, together with dental equipment and fixtures, to Miller, under the instrument first above mentioned, at an annual rental of $1800, payable in equal monthly installments. The system company also claims to own the 'E. R. Parker System,' whatever it may be. Under the 'license,' Miller is granted the exclusive right to the use of the 'system' in Colorado, for a consideration of $4200 per annum, also payable in equal monthly installments. The 'license' also requires Miller to buy all of his dental supplies and dental equipment from the system company; it reserves the right of inspection of the dental offices, provides for advertising the 'system' under the espionage of the company, the company to furnish 'advertising copy' and instructions as to the use of the 'system' on request of the 'licensee.' Both the 'lease' and 'license' contain strict covenants of forfeiture.

Miller admitted that all of his gross receipts from his dental practice had been deposited daily or oftener to the credit of the system company, which had its principal office in California, and that no one but its officers in that state had authority to draw checks against the account. Provision for salaries and local expenses was made by sending checks to Colorado from the California office of the system company. Miller further admitted that at the end of the year he could not tell whether he owed the company or the company owed him.

As to the theory of the defendant dentists as to what the 'E. R. Parker System' means, we quote a part of the testimony of French, not a dentist, but business manager and director of the system company:

'It (the system) is not a system of dentistry. Don't understand the E. R. Parker System as being a system of dentistry. It is just simply the E. R. Parker System.

'Q. Of bookkeeping? A. Of many things.

'Q. Business administration? A. Business administration, and preparations for grouping these things together in one place, and providing departments and operating offices and equipment for them, the standardization of the equipment, instruments, the standardization of all blanks, and methods, as I have stated Before --certain methods of procedure in dentistry. There is the peridental system that goes in with it, and the method of handling the patient in the chair, the method of handling the patient from the time that he is received in the office until he is finally finished. All of those things combined to make what is known as the E. R. Parker System, together with a definite group of offices, all working under one united plan, in various cities. That is the system, the same as the Union Pacific System, or the Burlington System, or the Harriman System--used in that sense. That is part of the system.'

Methods of advertising consisted of public exhibitions, newspaper advertisements, handbills, circular letters, a large Parker sign over each of the two Denver dental offices; signs on the stairways and office doors, all or nearly all of which contain a uniform emblem in the form of a crest or shield, with the words 'E. R. Parker System' thereon. Miller's name is printed on some of them as using the system, and none of the accused dentists deny their connection with it.

The Parker system is the conspicuous and predominant idea conveyed in all advertisements. Miller heralds it variously as 'Common Sense Dentistry,' 'Famous for Painless Dentistry,' etc. He advertises also that 'It means that you are getting better work for less money because dentists using this system do their work painlessly--enabling them to save time, which lowers the cost--do more and better work * * * at a price you will enjoy paying.' Miller further advertises: 'Dentists using the E. R. Parker System are able to make their prices so low that only dentists using the same system can meet them.'

One Miller advertisement proclaims that there are 'over a million satisfied patients' under the E. R. Parker system. As against this, it sufficiently appears that some of its methods are discredited and considered obsolete, and not generally practiced by the profession. A Denver physician and surgeon testified that he had been called to the Parker dental offices thirty or forth times to treat patients operated upon under the 'system,' about fifteen of them for cocaine poisoning; three of the patients had infections extending down into the jaw and into the neck; the three went to the hospital and...