Van Gordon v. Oregon State Bd. of Dental Examiners

• Jurisdiction: Oregon
• Parties: Larry R. VAN GORDON, D. M. D., Petitioner, v. OREGON STATE BOARD OF DENTAL EXAMINERS, Respondent. CA 17215.
• Citation: Van Gordon v. Oregon State Bd. of Dental Examiners, 629 P.2d 848, 52 Or.App. 749 (Or. App. 1981)
• Court: Oregon Court of Appeals
• Decision Date: 15 June 1981

Page 848

629 P.2d 848

52 Or.App. 749

Larry R. VAN GORDON, D. M. D., Petitioner, v.OREGON STATE BOARD OF DENTAL EXAMINERS, Respondent.

CA 17215.

Court of Appeals of Oregon.

Argued and Submitted March 23, 1981.

Decided June 15, 1981.

Don H. Marmaduke, Portland, argued the cause for petitioner.On the briefs were Barbee B. Lyon and Tonkon, Torp & Galen, Portland.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent.With him on the brief were Dave Frohnmayer, Atty. Gen., John R. McCulloch, Jr., Sol.Gen., and William F. Gary, Deputy Sol.Gen., Salem.

Before GILLETTE, P. J., and ROBERTS and YOUNG, JJ.

GILLETTE, Presiding Judge.

Petitioner seeks review of an order of the Oregon State Board of Dental Examiners(Board) revoking his license to practice dentistry in Oregon on grounds of "unprofessional conduct."ORS 679.140(c).Specifically, the Board found that the petitioner had engaged in a pattern of both overcharging and overtreating patients.Petitioner challenges the Board's order on several grounds.He contends, among other things, that the Board's findings are not supported by substantial evidence, that the Board relied on evidence outside the record and that he was denied due process of law because of the Board's alleged bias against him.¹We find that the Board's order is not supported by substantial evidence in the record and therefore reverse.ORS 183.482(8)(c).

HISTORY OF THE CASE

The Board's accusation of unprofessional conduct and notice of proposed license revocation was filed on May 19, 1977.²It charged the petitioner with prescribing or dispensing drugs outside the scope of dentistry, obtaining fees by misrepresentation or fraud and performing unnecessary treatment.Attached to the accusation and incorporated therein were eleven exhibits.Each exhibit referred to one of petitioner's patients.The eleven patients had been examined by three dentists appointed by the Board prior to the issuance of the charges against petitioner.The exhibits detailed the treatment, tooth by tooth, which petitioner claimed on welfare and insurance claim forms that he performed on these patients, and then separately stated the work the examining doctors found had been performed.The exhibits also noted whether pretreatment x-rays of the particular patient were reviewed by the examining doctors and, where they were, whether the x-rays revealed any evidence of cavities.These exhibits were the basis for the Board's accusation.Supplemented by the testimony of one of the examining doctors and evidence of certain patients' conditions as revealed by pre-operative and/or post-operative x-rays, they also form the basis of the Board's final order.

The charge of prescribing or dispensing drugs outside the scope of dentistry was unsupported by the evidence, and the hearings officer ordered that charge dismissed at the close of the hearing.As to the remaining charges, the Board made specific findings concerning each patient.In the cases of two patients, the Board found that the evidence did not sustain the charges.With respect to the other nine patients, and in accordance with the original accusation exhibits, the Board detailed certain work that it found had not been done.These findings support the Board's general finding of overcharging or obtaining fees by misrepresentation.In three of these cases the Board also found that there was no evidence of cavities and that restorations were made on healthy teeth.These findings support the Board's general finding of overtreatment or performing unnecessary treatment.

TERMINOLOGY

The technical nature of the claims and the evidence in this case makes it necessary to review briefly the basic structure of the mouth and the individual tooth.An adult has a maximum of 32 teeth.A child has 20.Dentists refer to permanent or adult teeth by the numbers 1 through 32.ToothNo. 1 is in the upper jaw, right side at the back.The tooth next to and just in front of it is No. 2, and so on.ToothNo. 16 is on the left upper side at the back.The lower teeth are numbered 17-32 from back left to back right.The 20 deciduous, or baby teeth, of a child are designated by the letters A through T in a similar fashion.

By tradition the dental profession treats an individual tooth as though it were a cube with five observable sides.The top or chewing surface of the tooth is the "occlusal" surface.The side of the tooth nearest the midline of the mouth (the front of the tooth) is the "mesial" side of the tooth; the back surface of the tooth furthest from the midline of the mouth is the "distal" side.These surfaces, the surfaces closest to the adjacent teeth, are also known as the "interproximal" or "proximal" surfaces.The side of the tooth next to the cheek is the "facial" side, and the side nearest the tongue is the "lingual" side.These sides or surfaces are represented by symbols: O for occlusal, M for mesial, D for distal, F for facial, L for lingual.The symbols, typically used in the sequence of MODFL, are used by dentists in patient charts and other records to identify that portion or side of the tooth needing repair or which has been restored, and for other purposes.With this nomenclature in mind, we turn to the specific claims before us.

OVERTREATMENT

The Board concluded that the evidence as a whole "reveals a pattern of * * * overtreatment.""Overtreatment" is defined by the Board to mean "that there were no caries (i. e., cavities), decalcification or other fault with the tooth which required restorative work."The Board made the following specific findings:

"Exhibit 1, Robert Doughty:

"(a) The Board finds that there were no interproximal caries evident.

"(b) Accordingly, restorations were made on healthy teeth.

" * * *

"Exhibit 2, Wendy Doughty:

"(a) No evidence of interproximal cavities.

"(b) That restorations were made on healthy teeth.

" * * *

"Exhibit 4, Brian Arent:

" * * *

"(b) There were patent violations of healthy teeth in numbers three and four.

" * * *

Petitioner's first contention concerning the Board's finding of overtreatment is that, because the accusation did not charge him with treating Brian Arent unnecessarily, the Board erred in making that finding.The Board concedes error as to Brian Arent.Therefore, only two instances of allegedly unnecessary treatment, viz., the treatment of Robert and Wendy Doughty, require further scrutiny.

It is undisputed that the pre-operative x-rays of the patients Robert and Wendy Doughty do not reveal any interproximal cavities, i. e., cavities on the surfaces between the teeth.There is also no question that petitioner, in fact, placed fillings in the interproximal spaces of the teeth under examination.However, the dentists who testified at the hearing agreed that x-rays do not reveal all the decalcification or decay which may exist in an individual's mouth.For example, x-rays are not particularly useful for diagnosing decay on the occlusal surface of the tooth; neither will they pick up signs of decay where teeth overlap each other.Most importantly, x-rays will not pick up early or shallow decay which takes place in the outer (enamel) layer of the tooth.This is called "decalcification."It is only when decay reaches the second (dentine) layer of the tooth that x-rays will reveal decay.Early decay or decalcification may, however, be noticed upon clinical examination and with the aid of a special instrument known as an "explorer."The expert testimony at the hearing indicated that a thorough dental examination consists of much more than just the taking of x-rays; an actual examination of the patient's mouth is necessary.

There was some disagreement among the dentists testifying as to whether and in what cases this shallow decay should be filled.However, that was not the issue before the Board.The issue was whether any evidence of decay existed at all.The dentists who examined the pre-operative x-rays testified that no cavities were visible from the x-rays but agreed that this did not necessarily mean that there were no interproximal cavities or decalcification.The Board itself found that

"(i)t was acknowledged by all of the testifying dentists that x-rays, alone, are not sufficient to fully describe * * * preoperative evaluations.* * * (A)n examination of the actual mouth (is required) to fully determine the extent of * * * the need for restoration * * *."

The x-ray evidence was the only evidence supporting the Board's findings.In view of the Board's own acknowledgment concerning that evidence, there is no "substantial" evidence to support the finding that cavities did not exist.

OVERCHARGING OR MISREPRESENTATION

Petitioner is charged with submitting claims to Welfare and Blue Cross for restoring more surfaces on certain teeth than were actually involved in a given restoration.The Board defines "overcharge" in its final order "as a charge made for work on a side of a tooth that simply was not done."

As earlier noted, dentists typically describe the work they perform on a given tooth according to the surfaces involved.The tooth itself is identified by its position or number in the mouth.For example, if a dentist filled a cavity on the mesial, occlusal and distal surfaces of the back upper right tooth, the procedure would be described as a # 1-MOD filling or restoration.If all five surfaces were treated it would be an MODFL.The fee for a restoration is usually predetermined, and is equal for each surface.The total fee for any given tooth depends upon the number of surfaces involved.In billing the Department of Welfare and private insurance carriers, a dentist submits a claim statement detailing the exact work performed and he is then reimbursed accordingly.Welfare and many insurance carriers, including the one involved in this case, will not pay for more than four sides; therefore, a restoration on five sides will be reimbursed to the same extent as a four-sided...