Wang, Matter of
| Decision Date | 09 June 1989 |
| Docket Number | No. C6-87-1337,C6-87-1337 |
| Citation | 441 N.W.2d 488 |
| Parties | In the Matter of the Disciplinary Action Against the Dentist License of Joseph H. WANG. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. The findings of the Board of Dentistry that appellant made suggestive or improper advances to three patients in violation of Minn.Stat. Sec. 150A.08, subd. 1(6) (1984) and Minn.Rule 3100.6200(c) (1987) are not supported by substantial evidence.
2. Appellant did not violate Minn.Stat. Sec. 150A.08, subd. 1(5) (1984) by prescribing tetracycline for treatment of acne of a former patient nor does substantial evidence support the finding that he authorized three refills of that prescription.
3. Minn.Stat. Sec. 150A.08, subd. 3 (1986) does not authorize the Board of Dentistry to assess against licensees the attorney fees and investigation costs incurred by the attorney general. The assessment of costs by the Board of Dentistry in a disciplinary matter must be in conformity with those costs enumerated in Minn.Stat. Sec. 3.761, subd. 4.
Reversed and dismissed.
Joe Thompson, Schmidt, Thompson, Thompson, Johnson & Moody, P.A., Willmar, for appellant.
Catherine Avina, Minneapolis, for respondent.
Heard, considered and decided by the court en banc.
This case comes before the court on appeal by Dr. Joseph H. Wang from a decision of the court of appeals which affirmed an order of the Minnesota Board of Dentistry suspending his license to practice dentistry. In re Wang, 417 N.W.2d 268 (Minn.App.1987). The Board, adopting in all respects the findings and conclusions of the Administrative Law Judge (ALJ), determined that Dr. Wang engaged in conduct unbecoming a person licensed to practice dentistry in violation of Minn.Stat. Sec. 150A.08, subd. 1(6) (1984) 1 and Minn.Rule 3100.6200(c) (1987) 2 and that he had improperly prescribed tetracycline for the treatment of acne in a former patient, in violation of Minn.Stat. Sec. 150A.08, subd. 1(5) (1984). 3 The Board suspended Dr. Wang's license for one year but ordered that the suspension be stayed after 60 days on the condition, among others, that he pay, during the course of the stay, $35,000 to help defray the costs incurred in bringing the proceeding. The court of appeals affirmed the order of the Board except as to the amount of the costs assessed and remanded to give Dr. Wang an opportunity to be heard. We reverse and dismiss.
A contested case hearing before Administrative Law Judge Peter C. Erickson (ALJ) in May of 1986 developed the facts concerning Dr. Wang and the charges brought by the Board. 4 Dr. Wang is an oral and maxillofacial surgeon with a Ph.D. in Pharmacology. He is the only oral and maxillofacial surgeon in Minnesota who also holds a Ph.D. in Pharmacology. In 1975, Dr. Wang completed a 3-year oral surgery residency at the University of Minnesota, then taught for a year in the oral and maxillofacial surgery department in the University of Minnesota School of Dentistry. At the time of the incidents which gave rise to these proceedings, Dr. Wang worked in his office in Willmar, Minnesota, where he has practiced oral surgery since 1976. He also worked one Saturday each month in the Edina office of Dr. Robert Johnson. The ALJ found Dr. Wang to be 47 years old, married with two children, well qualified to practice his profession and well-liked by his professional associates.
Based on the testimony of three female patients, D.C., C.J. and N.G., the ALJ found Dr. Wang engaged in suggestive conduct or conduct unbecoming a licensed professional with all three patients. Patient D.C. testified that on July 5, 1983, Dr. Wang embraced her after she stood up from the dental chair, where he had just removed sutures and that he attempted to kiss her near the doorway leading to the waiting room, where receptionist Dawn Gauer is normally stationed. Vicki Constans, Dr. Wang's primary auxiliary in Willmar, was working in an open lab across the hall from where the incident with D.C. was found to have occurred. Constans testified that she watched D.C. get up and leave the room and that no improper conduct took place.
Patient C.J. testified that on October 20, 1983, Dr. Wang rubbed her breast as she recovered from anesthesia in the operatory and made suggestive comments. Auxiliary Constans testified that she was in the operatory at the time of the alleged incident and that no improper conduct occurred.
The third incident was found to have occurred on February 11, 1984, in the Edina office, where Dr. Wang worked one Saturday a month. The ALJ found patient N.G. visited the Edina office for the removal of wisdom teeth and was taken to a recovery room after the procedure as she was having a difficult time recovering from the anesthesia. N.G. testified that Dr. Wang rubbed his hand across her breast while he was rubbing her hands to aid recovery and that he asked suggestive questions. Judith Jeffrey, Dr. Wang's primary auxiliary in the Edina office, testified that she remained with N.G. at all times in the recovery room and that no misconduct occurred.
Seven current and past employees, including one he had discharged, testified to Dr. Wang's good character and conduct.
In addition to the eyewitness testimony of his auxiliaries that the touching had not occurred, Dr. Wang presented a substantial amount of expert testimony regarding the effects of the anesthetics he uses. The gist of this testimony is as follows: patients especially females, will not infrequently experience sexual dreams or hallucinations while under the influence of the types of anesthetics used by Dr. Wang as part of his practice; some patients may have trouble distinguishing reality from their own dreams or hallucinations while under the influence of these anesthetics; these risks are one of the reasons dentists and oral surgeons are taught to have an auxiliary present when using anesthetics which impair the cognitive functions. The Board's experts tended to question only the frequency that sexual dreams or hallucinations might occur. The ALJ found that the events in question were not dreams but did, in fact, occur.
With regard to the improper prescription charge, the Board alleged and the ALJ found Dr. Wang authorized an original prescription, and three refills, of tetracycline for David Jefferson, related to the treatment of acne. Dr. Wang admits authorizing the original prescription and denies authorizing refills. Specific findings on this charge are as follows:
On September 10, 1982, Dr. Wang extracted a wisdom tooth from David Jefferson, the son of a co-tenant in the building which houses Dr. Wang's office. At the time the extraction was performed, Dr. Wang noticed that David Jefferson had acne on his face.
Gordon Jefferson, David Jefferson's father, contacted Ray Pierskalla, a pharmacist in the same office building as Jefferson and Dr. Wang, to procure medication to treat his son's acne in early 1983. Mr. Jefferson stated that he was a medical doctor and told Mr. Pierskalla that he wanted to obtain accutane for his son. The pharmacist questioned use of this drug, because it was usually the drug of last resort for acne, and suggested that tetracycline be used instead. Jefferson agreed to this and Pierskalla filled a prescription of tetracycline for David Jefferson as ordered by Gordon Jefferson. Subsequently, Mr. Pierskalla became suspicious concerning Mr. Jefferson's credentials as a medical doctor. After a check with the County Medical Association, Pierskalla discovered that Mr. Jefferson was not a licensed M.D.
On Saturday, March 26, 1983, Mr. Jefferson telephoned Mr. Pierskalla from his office to order a refill of tetracycline for his son. At that time Pierskalla questioned Jefferson concerning his drug enforcement number to ascertain Jefferson's "authority" to prescribe medication. Jefferson stated that he did not have his DEA number available at that time. Dr. Wang then walked into Jefferson's office and was asked by Jefferson to authorize the prescription of tetracycline. Dr. Wang consented, talked to Pierskalla on the phone, and authorized the prescription for David Jefferson. Jefferson told Dr. Wang that because the family was leaving town on that day, it was imperative that the prescription be filled. Subsequently, Dr. Wang authorized refills of the prescription for tetracycline on April 23, July 9, and August 22, 1983.
Tetracycline is a legend drug as defined in Minn.Stat. ch. 151 (1984).
The scope of practice an oral maxillofacial surgeon such as Dr. Wang does not include the treatment of acne unless the surgeon is contemplating a procedure which involves an incision on the facial region. Treatment of acne may then be necessitated to eliminate the risk of infection to the area which is operated on.
The ALJ concluded that Dr. Wang violated Minn.Stat. Sec. 150A.08, subd. 1(5) (1984) by prescribing tetracycline to David Jefferson and authorizing refills on that prescription through August of 1983. According to the findings, prescribing tetracycline for the treatment of acne was outside the scope of Dr. Wang's practice in David Jefferson's case.
The Board in its order adopted and incorporated as its own in all respects the findings and conclusions of the ALJ. The Board suspended Dr. Wang's license but stayed that suspension after 60 days on condition that, among others, Dr. Wang tender payment of $35,000 to help defray costs of the proceedings. The court of appeals affirmed the order of the Board except as to the amount of the costs. We granted review.
This appeal raises three issues: whether substantial evidence supports the Board's findings that appellant made suggestive or improper advances to three patients; whether substantial evidence supports the Board's findings that appellant improperly prescribed tetracycline and authorized refills of that prescription; and whether the Board assessed excessive costs.
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