Styskal v. Wright

• Decision Date: 29 July 1994
• Docket Number: No. S-91-906,S-91-906
• Citation: Styskal v. Wright, 246 Neb. 513, 519 N.W.2d 543 (Neb. 1994)
• Parties: Stephen R. STYSKAL, D.D.S., Appellant, v. Gregg F. WRIGHT, M.D., M.Ed., and Department of Health, State of Nebraska, Appellees.
• Court: Nebraska Supreme Court

Page 543

519 N.W.2d 543

246 Neb. 513

Stephen R. STYSKAL, D.D.S., Appellant, v.Gregg F. WRIGHT, M.D., M.Ed., and Department of Health, State of Nebraska, Appellees.

No. S-91-906.

Supreme Court of Nebraska.

July 29, 1994.

Syllabus by the Court

1.Administrative Law: Statutes: Time: Appeal and Error.Where the proceedings for review of an administrative hearing are initiated in the district court after July 1, 1989, the review will be conducted by the district court without a jury de novo on the record of the agency as required by Neb.Rev.Stat. § 84-917(5)(a)(Cum.Supp.1992).

2.Administrative Law: Judgments: Final Orders: Time: Appeal and Error.The decision of the district court after review under the Administrative Procedure Act may be appealed to the Nebraska Court of Appeals, and in cases where the petition instituting review was filed in the district court after July 1, 1989, the judgment rendered or final order made by the district court may be reversed, vacated, or modified for errors appearing on the record.

3.Constitutional Law: Statutes: Standing.To have standing to challenge the federal or state constitutionality of a statute, the contestant must be one who is, or is about to be, adversely affected by the language in question and must show that as a consequence of the alleged unconstitutionality, the contestant is deprived of a constitutionally protected right.

4.Constitutional Law: Statutes: Standing.In order to have standing to assert a claim of vagueness, a defendant must not have engaged in conduct which is clearly prohibited by the questioned statute and cannot maintain that the statute is vague when applied to the conduct of others.

Steven E. Achelpohl and John W. Steele, Schumacher & Achelpohl, Omaha, for appellant.

Don Stenberg, Atty. Gen., and Melanie J. Whittamore-Mantzios, for appellees.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, and LANPHIER, JJ., and GRANT, J., Retired.

GRANT, Justice, Retired.

A disciplinary action was filed before the director of the State Department of Health, Gregg F. Wright, M.D., against Stephen R. Styskal, D.D.S., by the Attorney General of Nebraska.The petition alleged that Styskal had engaged in grossly immoral, dishonorable conduct showing a lack of fitness to practice dentistry in Nebraska, in violation of Neb.Rev.Stat. § 71-147(2)(Reissue 1990); that Styskal had practiced dentistry beyond its authorized scope, in violation of § 71-147(5)(b); and that Styskal had engaged in unprofessional conduct, in violation of § 71-147(10).

After a hearing before an examiner designated by the director, the director issued his order finding that Styskal had violated each of the statutory sections.The director revoked Styskal's license to practice dentistry in Nebraska.

Styskal timely appealed from the director's decision to the district court for Lancaster County pursuant to Neb.Rev.Stat. § 84-917(Cum.Supp.1992) by filing a petition in which Styskal was plaintiff, and the director of the State Department of Health and the State Department of Health were defendants.

Where the proceedings for review of an administrative hearing are initiated in the district court after July 1, 1989, the review will be conducted by the district court"without a jury de novo on the record of the agency" as required by § 84-917(5)(a).After its review, the district court, in a 12-page opinion, stated that the court believed that the account of the State's witnesses was accurate, and the court found, by clear and convincing evidence, that Styskal had violated each of the statutes alleged in the proceedings against him to have been violated.The district court modified the director's order and issued its order suspending Styskal's license to practice dentistry for 2 years from June 4, 1991, with the further requirement that after that time, Styskal was to be on probation for the practice of dentistry and subject to certain conditions.

Styskal timely appealed to the Nebraska Court of Appeals.We removed the case to this court under the authority of Neb.Rev.Stat. § 24-1106(3)(Cum.Supp.1992) in order to regulate the caseloads of the Nebraska appellate courts and because Styskal raised the question of the constitutionality of certain Nebraska statutes.In his appeal, Styskal assigns three errors.He contends that the district court erred as a matter of law in interpreting Neb.Rev.Stat. § 71-183(6)(Reissue 1990) to limit dental diagnosis and treatment to the areas of the neck and above.He then contends in his second assignment of error that "[t]he District Court's erroneous legal interpretation with respect to the allowable scope of dentistry impermissibly infected its determination of the facts."Finally, Styskal contends that "[t]he dentistry statutes under which [he] was disciplined are unconstitutionally overbroad and vague on their face and as applied in this case."We note, in connection with his second assignment of error, that Styskal in his brief specifically states that he does not raise the question of sufficiency of the evidence.We agree that the evidence is sufficient to support the judgment, and for the reasons hereinafter stated, we do not reach the other questions presented.We affirm.

The record before us shows the facts hereinafter set out.Styskal was licensed to practice dentistry in Nebraska in 1979.He practiced dentistry in Grand Island, Nebraska, after that time until his license to practice dentistry was suspended.

The State's disciplinary action against Styskal was based on his conduct with a female patient, Elpidia Zavala, on February 17, 1990.Zavala is from Mexico and had lived in the United States since 1985.On December 19, 1988, she was in an automobile accident in Grand Island in which she injured her jaw, chest, neck, and back.After the accident, Zavala was examined at St. Francis Medical Center in Grand Island.X rays of her skull, chest, and cervical spine were taken.Zavala later consulted a chiropractor in Grand Island; an orthopedic surgeon in Hastings, Nebraska; and a dentist in Grand Island, Dr. Gerald Murphy.All of these consultations were before Zavala saw Styskal.The orthopedic surgeon and the chiropractor evaluated the x rays taken at St. Francis Medical Center.On January 31, 1989, Dr. Murphy took and evaluated x rays of Zavala's jaw and did a thorough clinical dental examination.No examining health professional found any broken bones.The general conclusion was that Zavala had suffered a cervical strain with some associated injury.

Dr. Murphy's opinion was that Zavala had suffered a "traumatically induced internal derangement of the temporomandibular joint with a muscle dysfunction."Dr. Murphy testified that as a dentist, he specialized in "cranial mandibular disorders," which he defined as "a branch of dentistry that deals with the musculoskeletal interrelationship of the jaw to the cranium and the cranium to the cervical spine."Dr. Murphy testified that he was a fellow in the American Academy of Head, Neck, and Facial Pain, which is an association formed by health care professionals, including dentists, having an interest in that specialized field.

Dr. Murphy further testified that an injury of the type Zavala suffered was first referred to as TMJ (temporomandibular joint disorder), but that the correct term is temporomandibular disorder or craniomandibular disorder.Throughout the hearing, the condition was usually referred to as "TMD," and we will, as did the learned district judge on appeal, so refer to the condition in this opinion.No party in this case contends that Dr. Murphy is not an expert in the field of TMD.

Dr. Murphy explained there is a direct biomechanical and functional interrelationship between the craniomandibular and the craniocervical complex.In order to more easily determine the thrust of Dr. Murphy's testimony, we note the following definitions form the Sloane-Dorland Annotated Medical-Legal Dictionary (1987): "Temporomandibular" is defined as " 'pertaining to the temporal bone and the mandible.' "Id. at 696.(The temporal bone is one of the two irregular bones forming part of the lateral surfaces and base of the skull.)"Cranium" means "the skeleton of the head, variously construed as including all of the bones of the head ... except the mandible."Id. at 171."Mandible" or "mandibula" means "the bone of the lower jaw,"id. at 431, and "cervical" means "pertaining to the neck,"id. at 132.

Dr. Murphy testified that because of the interrelation of the bones and muscles of the head, neck, and upper part of the body, it was within proper dental practice to check the various muscles in that part of the body to determine if a relatively remote muscle might be causing facial pain in a patient's jaw.

The American Academy of Head, Neck, and Facial Pain recommended that various muscle palpations should be performed on, among others, the trapezius muscle, the pectoralis muscle, and the sternalis muscle.These palpations may lead to the discovery of a "trigger point," a term which Dr. Murphy defined as an area within a muscle where the muscle is dysfunctional.Dr. Murphy explained as an example that pressure on a trigger point in the trapezius muscle, the large muscle in the shoulder, could cause pain in the side of a patient's head.In that situation, treatment of the trigger point in the muscle might relieve the pain in the side of the head.

Dr. Murphy's position on the effect of muscle dysfunction in other parts of the body causing pain in a dental patient's jaw was summarized in an articlehe had written entitled "Myofascial Trigger Points."This article was received as exhibit 9 and stated, in part:

Although some of the pain associated with craniomandibular disorders may be arthralgic [pain in a joint], in the vast majority of cases it is myalgic [pain in a muscle].Such pain is often the direct result of muscle spasm, trigger points, or a combination of the two.To...