Walker v. State Bd. of Dentistry
| Citation | 5 N.E.3d 445 |
| Decision Date | 13 March 2014 |
| Docket Number | No. 49A02–1307–MI–593.,49A02–1307–MI–593. |
| Parties | Donald R. WALKER, D.D.S., Appellant–Petitioner, v. STATE BOARD OF DENTISTRY, Appellee–Respondent. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Steven P. Polick, Polick P. Polick & Associates, P.C., Griffith, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Donald Walker, D.D.S., appeals the trial court's denial of his petition for judicial review of a decision by the State Board of Dentistry (“the Board”). We affirm.
Dr. Walker raises two issues, which we restate as:
I. whether the Board properly found that Dr. Walker violated Indiana Code Section 25–1–9–4(a)(3) by failing to provide continual and direct supervision to Patient A; and
II. whether the Board properly found that Dr. Walker violated Indiana Code Section 25–1–9–4(a)(4)(B) by using the “hand over mouth” technique on Patient A.
Dr. Walker is a dentist licensed in Indiana. Patient A 1 saw Dr. Walker in September 2008 to have her wisdom teeth extracted. When she woke after the surgery, Patient A had a “strange feeling that [she] couldn't breathe.” App. p. 97. She felt like she was “gasping for air.” Id. Dr. Walker's dental hygienist told Patient A that she could “breathe just fine and that [she] needed to stop, because [she] was scaring other patients.” Id. Dr. Walker then placed his hand over Patient A's mouth and held it there for a few seconds. Patient A was “really scared” by Dr. Walker's actions. Id.
Two hygienists then helped Patient A to another room, where they left her on a bench. According to Patient A, no one remained in the room with her. Patient A was “drowsy from the sedation” and tried to lay down on the bench so that she would not fall off. Id. at 98. Patient A's husband picked her up at the office's back door. Patient A felt like “they were rushed to get [her] out of there and away from the other patients.” Id. Patient A was sobbing and wrote a note to her husband explaining what had happened. Patient A went to a different dentist for the follow-up care.
Patient A filed a complaint with the Attorney General's Consumer Protection Division (“CPD”). In October 2011, the CPD filed a complaint with the Board against Dr. Walker. A hearing was held before the Board in October 2012. The issues before the Board concerned Dr. Walker's use of the “hand over mouth” technique on Patient A and whether Patient A was properly observed after the surgery. After a hearing, the Board found:
10. When Patient A awoke from the sedation, she felt like she could not breathe. Patient A became apprehensive and excited. Patient A was told that her behavior was scaring other patients.
11. Respondent then placed his hand over Patient A's mouth, a technique known as “hand over mouth,” in order to quiet Patient A. This evoked feelings of fear in Patient A.
12. The “hand over mouth” technique was previously taught in dental school and accepted within the dental community for pediatric patients up until the 1980s. The “hand over mouth” technique is not current professional theory or practice for use on adult patients.
13. At some point during Patient A's recovery, she was moved to another room which Respondent's staff referred to as the “holding” room. This room had a door which led to a parking lot where patients were picked up following surgery. Patient A was placed on a bench in this room, and Patient A reported that she almost fell off the bench.
14. Respondent's staff testified that an assistant or hygienist remained with the patient while in the “holding room” by either standing beside the patient or observing from an adjacent room while providing treatment to another patient.
15. Direct supervision is not being provided[,] however, when the hygienist is in an adjacent room while providing treatment to another patient.
16. The only individual with credible testimony and personal knowledge who testified as to whether Patient A, in particular, remained under direct and continuous supervision in the “holding” room was Patient A. Patient A testified that no one remained in the room with her.
1. Respondent violated Ind.Code § 25–1–9–4(a)(3) in that Respondent violated 828 IAC 3–1–6.5(c)(10), by failing to provide continual and direct supervision by a person trained in basic cardiac life support to Patient A, as evidenced by the fact that Patient A was not provided continual and direct supervision in Respondent's “holding” room.
2. Respondent violated Ind.Code § 25–1–9–4(a)(4)(B) in that Respondent has continued to practice although he has become unfit to practice due to his failure to keep abreast of current professional theory or practice as evidenced by the fact that he used, and continues to use, the “hand over mouth” technique on adult patients, including Patient A.
App. pp. 10–12. The Board ordered certain sanctions, including the imposition of an indefinite probation and fines and costs.
Dr. Walker filed a petition for judicial review. After briefs were filed and a hearing was held, the trial court issued findings of fact and conclusions thereon denying Dr. Walker's petition. The trial court found there was substantial evidence to find that Dr. Walker knowingly violated 828 IAC 3–1–6.5(c)(10) by failing to provide continual and direct supervision of Patient A by a person trained in basic cardiac life support. The trial court refused to reweigh the evidence or judge Patient A's credibility and found that the Board's interpretation of the phrase “continual and direct supervision” was reasonable. Id. at 70. Further, the trial court found there was substantial evidence to find that the “hand over mouth” technique was not “current professional theory or practice.” Id. at 72. The trial court noted that the Board could accept the opinion of one expert over another. Dr. Walker now appeals.
In an appeal involving a decision of an administrative agency, our standard of review is governed by the Administrative Orders and Procedures Act (“AOPA”), and we are bound by the same standard of review as the trial court. Dev. Servs. Alternatives, Inc. v. Indiana Family & Soc. Servs. Admin., 915 N.E.2d 169, 176 (Ind.Ct.App.2009), trans. denied. We do not try the case de novo and do not substitute our judgment for that of the agency. Musgrave v. Squaw Creek Coal Co., 964 N.E.2d 891, 899 (Ind.Ct.App.2012), trans. denied. We will reverse the administrative decision only if it is: (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2) contrary to a constitutional right, power, privilege, or immunity; (3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of procedure required by law; or (5) unsupported by substantial evidence. Ind.Code § 4–21.5–5–14.
Courts that review administrative determinations are prohibited from reweighing the evidence or judging the credibility of witnesses and must accept the facts as found by the administrative body. Indiana State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp., 865 N.E.2d 660, 665–66 (Ind.Ct.App.2007). A court may not substitute its judgment for that of the agency. Id. Additionally, a court may not overturn an administrative determination merely because it would have reached a different result. Id. An interpretation of statutes and regulations by an administrative agency charged with the duty of enforcing those regulations and statutes is entitled to great weight unless this interpretation would be inconsistent with the law itself. Id. at 665. The reviewing court should generally accept an agency's reasonable interpretation of regulations and statutes. Id. Although an appellate court grants deference to an administrative agency's findings of fact, no such deference is accorded to its conclusions of law. Musgrave, 964 N.E.2d at 899–900 (citing LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind.2000)). The burden of demonstrating the invalidity of the agency action is on the party who asserts the invalidity. Id. at 900.
Indiana Code Section 25–1–9–4(a) provides:
A practitioner shall conduct the practitioner's practice in accordance with the standards established by the board regulating the profession in question and is subject to the exercise of the disciplinary sanctions under section 9 of this chapter if, after a hearing, the board finds ... (3) a practitioner has knowingly violated any state statute or rule, or federal statute or regulation, regulating the profession in question.
The Board found that Dr. Walker violated 828 IAC 3–1–6.5(c)(10), which governs the use of general anesthesia and deep sedation by dentists and provides: “At the completion of the anesthetic when continuous monitoring is no longer required, the patient must be transferred to a recovery facility for continual and direct supervision by a person trained in basic cardiac life support.” The Board found that Dr. Walker did not provide “continual and direct supervision” of Patient A while she was in the holding room.
On appeal, Dr. Walker argues that the Board applied the wrong definition to the phrase “direct supervision.” According to Dr. Walker, the Board should have applied the definitions of “direct supervision” listed in Indiana Code Section 25–13–1–2(i), which provides: “ ‘Direct supervision’ means that a licensed dentist is physically present in the facility when patient care is provided by the dental hygienist,” and Indiana Code Section 25–14–1–1.5(5), which provides: “ ‘Direct supervision’ means that a licensed dentist is physically present in the facility when patient care is provided by the dental assistant.” However, we note that these definitions occur in chapters dealing with “Regulation of Dental Hygienists by State Board of Dentistry,” Ind.Code Chapter 25–13–1, and ...
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