No. 81SA409Supreme Court of Colorado.
Decided December 6, 1982.
Appeal from an Order of the State Board of Dental Examiners, State of Colorado O. J. Lucero, D.D.S., President.
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Calkins, Kramer, Grimshaw Harring, Kleh, Himelspach, Berrett Will, David M. Berrett, for petitioner.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Solicitor General, William A. Richardson, Assistant Attorney General, Regulatory Law Section, for respondents.
En Banc.
JUSTICE QUINN delivered the opinion of the Court.
[1] Dr. Robert O. Lee appeals from an order of the State Board of Dental Examiners (board) suspending his license to practice dentistry for two weeks due to violations of the Dental Practice Law of Colorado, section 12-35-101, et seq., C.R.S. 1973 (1978 Repl. Vol. 5). He contends that several of the evidentiary findings of fact underlying the suspension order lack adequate support in the record. He also claims that even if the findings are supported by adequate evidence, they are nevertheless insufficient as a matter of law to constitute “negligent malpractice,” “gross incompetence” or “unprofessional conduct” as those terms are used in section 12-35-118, C.R.S. 1973 (1978 Repl. Vol. 5).[1] Finally, Dr. Lee argues thatPage 841
the definition of “unprofessional conduct” contained in section 12-35-118(2)(s), C.R.S. 1973 (1978 Repl. Vol. 5), is unconstitutionally vague.[2] We hold that there is sufficient evidence to support the challenged evidentiary findings of fact. We also hold that while these findings are sufficient to support the charge of “negligent malpractice,” the board improperly determined that Dr. Lee engaged in “gross incompetence” and “unprofessional conduct.” In light of this disposition we remand for a reconsideration of the appropriate sanction.
I.
[2] On January 30, 1978, Mrs. Kathleen Young took her seven-year-old son Adam to Dr. Lee for a routine dental examination. Dr. Lee visually examined and took X-rays of Adam’s teeth and observed that the boy had cavities in two primary or “baby” teeth, designated by dental nomenclature as teeth I and S. He informed Mrs. Young of Adam’s two cavities, and she scheduled an appointment for treatment on February 21, 1978. At some time prior to treatment Dr. Lee examined the X-rays and concluded that Adam also probably had cavities in two other teeth, L and B. He noted on his file that Mrs. Young should be called and advised of these additional cavities.
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his failure to mention any additional cavities in teeth L and B. According to Mrs. Young, the doctor merely stated to her that Adam “should come back for another six month checkup.”
[6] Dr. Walter also testified at the disciplinary hearing. He described his treatment of Adam, the treatment previously administered by Dr. Lee, and, in his capacity as an expert witness who had practiced dentistry in the Denver area for a number of years, he testified to the generally accepted community standard of dental care. It was Dr. Walter’s opinion that Dr. Lee’s action did not comport with this standard. Specifically, Dr. Lee’s X-rays of teeth I and S were, in Dr. Walter’s view, inadequate diagnostic tools because they failed to depict the periapical areas of the teeth. These areas surround the roots of the teeth and, according to Dr. Walter, must be observed before a proper course of treatment for teeth with deep decay can be determined. Further, it was Dr. Walter’s testimony that where there is gross decay present, as in teeth I and S, it is inappropriate to treat the teeth with an amalgam restoration. In fact, Dr. Walter believed that, at least with regard to tooth S, Dr. Lee’s treatment actually exacerbated the process of tooth decay. Dr. Walter was also of the opinion that, given Dr. Lee’s conservative choice of treatment, the generally accepted standard of care required him to inform Mrs. Young of the extent of decay in teeth I and S and to caution her to notify him of any troublesome symptoms. Finally, Dr. Walter stated that although Dr. Lee’s X-ray of tooth B overlapped an adjacent tooth and consequently masked the extent of decay in tooth B, the X-ray did show that tooth B had caries, and that the standard of care in the community required Dr. Lee to notify Mrs. Young of this kind of condition. [7] Although Dr. Lee testified in his own behalf, he did not specifically recall his treatment of Adam. His testimony consequently was based upon his office records and his general procedures in treating dental patients. He stated that unless there was a serious bacterial invasion into the pulp of the tooth, he ordinarily would employ the more conservative and less expensive treatment of excavating the cavity and filling the tooth with an alloy rather than performing a pulpectomy. When he did elect against a pulpectomy, however, his normal procedure was to inform the patient or the patient’s parents that the prognosis was a guarded one. Finally, Dr. Lee offered no reason why he never treated teeth L and B, both of which appeared on the January 30 X-rays to have likely cavities, although his normal procedure, according to his testimony, would have been to advise the patient or his parents of the cavities. [8] Among the hearing officer’s relevant findings of fact were the following: [9] “On an x-ray of Adam’s teeth taken by Dr. Lee on January 30, 1978 . . ., tooth I is inadequately revealed since the root area is not shown at all.” [10] “The standard of dental care in the Denver metropolitan area includes the retaking of x-rays which do not reveal a full tooth, especially when that tooth has caries.” [11] “Dr. Lee did not tell Mrs. Young that his treatment of Adam’s teeth I and S was very conservative or that there was a chance of problems.” [12] “The standard of dental care in the Denver metropolitan area includes instruction to custodial parents of the possibility of future problems when the decay in a child’s tooth filled by a dentist is large and close to the pu[l]pal chamber.” [13] “The x-rays of Adam’s teeth taken by Dr. Lee on January 30, 1978 reveal caries in tooth L and tooth B but Dr. Lee did not tell Mrs. Young to bring Adam back for treatment.” [14] “The standard of dental care in the Denver metropolitan area includes advising custodial parents that a child needs treatment for conditions revealed on x-rays.” [15] “Had Dr. Lee performed a pulpectomy on Adam’s teeth I and S in January of 1978, tooth I would not have abcessed and been pulled in April, nor would tooth S have had to be pulled in May of 1978.”Page 843
[16] The hearing officer concluded that Dr. Lee had committed “negligent malpractice and gross incompetence” in violation of section 12-35-118(1)(e) because of his failure to retake the x-ray of tooth I so that all of the tooth would be visible prior to Adam’s treatment, his failure to advise Mrs. Young that Adam might have trouble with teeth S and I, his failure to advise Mrs. Young that Adam had cavities in teeth L and B, and his failure to perform or offer to perform a pulpectomy on Adam’s teeth I and S. The hearing officer ruled, however, that the evidence was insufficient to establish the other allegations of professional misconduct. The recommendation of the hearing officer was a two week suspension of Dr. Lee’s license, plus two years probation conditional on the doctor’s taking educational courses in dental practice. [17] Dr. Lee petitioned the board to review the initial decision of the hearing officer. See section 24-4-105(15)(a), C.R.S. 1973 (1982 Repl. Vol. 10). The board adopted the hearing officer’s findings of fact and concluded that the acts of misconduct relied on by the hearing officer constituted not only “negligent malpractice” and “gross incompetence” in violation of section 12-35-118(1)(e), but also “unprofessional conduct” as proscribed by section 12-35-118(2)(s). The board imposed a suspension period of thirty days, suspended execution of all but two weeks of the thirty day period, and placed Dr. Lee on probation for two years with directions to complete courses in continued dental education and dental record keeping. This appeal followed. II.
[18] We first address Dr. Lee’s contention that some of the hearing officer’s factual findings, which were adopted by the board, lack sufficient evidentiary support in the record. The challenged findings are ones of evidentiary fact, that is, they are the detailed factual or historical findings upon which the legal determination of the board rests E.g., Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969) see also 2 K. Davis, Administrative Law Treatise § 16.06 (1958). Evidentiary findings of an administrative agency may be set aside only if they are clearly erroneous on the whole record or are unsupported by substantial evidence when the record is considered as a whole. Section 24-4-106(7), C.R.S. 1973 (1982 Repl. Vol. 10); see, e.g., Lassner v. Civil Service Commission, 177 Colo. 257, 493 P.2d 1087 (1972). Contrary to Dr. Lee’s claim, we are satisfied that the challenged factual findings, when considered in light of the whole record, are not clearly erroneous and are supported by substantial evidence.
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to accord the greater weight to the testimony of Mrs. Young, as the hearing officer obviously did.[5] According to Mrs. Young, Dr. Lee merely told her to schedule her son for his next semi-annual examination, without mentioning any details whatever of his treatment or other problems regarding her son’s teeth. A mere conflict in the evidence, as here present, does not render evidentiary findings clearly erroneous or without substantial support in the record.
III.
[21] We now turn to Dr. Lee’s argument that the findings, regardless of their evidentiary support, are insufficient as a matter of law to support the board’s conclusions that Dr. Lee committed “negligent malpractice,” “gross incompetence” and “unprofessional conduct” within the meaning of section 12-35-118, C.R.S. 1973 (1978 Repl. Vol. 5). The board’s determinations were stated in terms of Dr. Lee’s actions and their relationship to the controlling legal standards, and thus were findings of ultimate fact. Findings of ultimate fact, as distinguished from raw evidentiary fact, involve as a conclusion of law, or at least a determination of a mixed question of law and fact, and settle the rights and liabilities of the parties. Ricci v. Davis, 627 P.2d 1111 (Colo. 1981); Womack v. Industrial Commission, supra; see 2 K. Davis, Administrative Law Treatise § 16.06 (1958). An ultimate finding of fact will be set aside by a reviewing court only if, assuming there is evidence to support the finding, it is “contrary to law,” section 24-4-106(7), C.R.S. 1973 (1982 Repl. Vol. 10); stated conversely, an ultimate finding of fact will be sustained if it has a reasonable basis in law. Ricci v. Davis, 627 P.2d at 1118-1119. In our opinion the board’s determination that Dr. Lee’s actions constituted negligent malpractice has a reasonable basis in law. We find no such basis, however, for the board’s conclusion that these same actions also constituted “gross incompetence” and “unprofessional conduct.”
A.
[22] The phrase “negligent malpractice,” although not specifically defined by the Dental Practice Law, has a commonly accepted meaning based upon long-standing usage. See generally Artist v. Butterweck, 162 Colo. 365, 426 P.2d 559 (1967); McKay v. State Board of Medical Examiners, 103 Colo. 305, 86 P.2d 232 (1938); Brown v. Hughes, 94 Colo. 295, 30 P.2d 259 (1934). In the case of dentistry the phrase “negligent malpractice” means the failure of a dentist to exercise that degree of knowledge, skill and care used by other dentists engaging in the same type of practice in the same or a similar community. Id.
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under the community standard of care, for treating such a condition See, e.g., Mallett v. Pirkey, 171 Colo. 271, 466 P.2d 466 (1970); McKay v. State Board of Medical Examiners, supra; Jackson v. Burnham, 20 Colo. 532, 39 P. 577 (1895). In this case there is no finding that the community’s generally accepted standard of care required Dr. Lee to perform a pulpectomy, nor would the evidence in the record support such a finding. Dr. Walter, although characterizing Dr. Lee’s choice of treatment as inappropriate, did not testify that a pulpectomy was the only established method of treating the condition manifested in teeth I and S. Consequently, the board’s conclusion that Dr. Lee committed negligent malpractice in failing to perform a pulpectomy or in failing to offer a pulpectomy must be set aside. The record, however, indicates that each of Dr. Lees’ four actions was viewed by the board as a separate and independent basis for its determination of negligent malpractice. Because the other three actions of Dr. Lee provide ample support for the board’s ultimate finding of negligent malpractice, we do not reverse the board’s decision on this aspect of the case.
B.
[25] Although section 12-35-118(1)(e), C.R.S. 1973 (1978 Repl. Vol. 5), authorizes the board to suspend a dentist’s license for “gross incompetence or negligent malpractice,” the board here concluded that Dr. Lee’s actions constituted both of the alternatives. We believe that this determination cannot be sustained under the record before us.
(1932). In our opinion the term “gross incompetence,” at least in the context of dentistry, connotes such an extreme deficiency on the part of a dentist in the basic knowledge and skill necessary to dental diagnosis and treatment that one may reasonably question his ability to practice dentistry at the threshold level of professional competence. See generally Yoshizawa v. Hewitt, 52 F.2d 411 (9th Cir. 1931); Colorado State Board of Nurse Examiners v. Hohu, 129 Colo. 195, 268 P.2d 401
(1954); Franz v. Board of Medical Quality Assurance, 31 Cal.3d 124, 642 P.2d 792, 181 Cal.Rptr. 732 (1982); New Jersey State Board of Optometrists v. Nemitz, 21 N.J. Super. 18, 90 A.2d 740 (1952); Stacey v. Board of Accountancy, 26 Or. App. 541, 553 P.2d 1074 (1976). [27] The record in this case is lacking in the quantum of evidence necessary to support a reasonable inference that Dr. Lee was “grossly incompetent.” The actions upon which the board based its finding of negligent malpractice consisted of Dr. Lee’s failure to retake a faulty X-ray, his failure to inform Mrs. Young of likely cavities in Adam’s teeth L and B, and his failure to advise her of the guarded prognosis and possibility of future problems in teeth I and S. The only additional conduct disclosed by the record which the board conceivably could have considered in relation to the charge of “gross incompetence” was Dr. Lee’s selection of what Dr. Walter characterized as an inappropriate method of treatment for teeth I and S. The overall conduct of Dr. Lee, although being sufficiently unsuitable in several particulars to constitute cause for discipline under the “negligent malpractice” standard, does not manifest, in our view, the extreme lack of basic skills essential to a finding of “gross incompetence.” In the absence of some additional evidence demonstrating that Dr. Lee’s conduct in his treatment of Adam was only one of many instances of similar conduct, or that his treatment represents a standard of practice which is so grossly deviant from the accepted standard of dental care as to be beyond all bounds of professional tolerance,
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we believe that the board’s determination of “gross incompetence” could only have been based upon the misconception that this ground for discipline was the substantial equivalent of “negligent malpractice.” Given the state of the record before us, we conclude that the board’s ultimate finding of gross incompetence lacks a reasonable basis in law, and we therefore reverse that determination.
C.
[28] We next address Dr. Lee’s claim that the board erred in determining that his actions constituted “unprofessional conduct” within the meaning of section 12-35-118(2)(s). Although the hearing officer determined that the charge of “unprofessional conduct” had not been proven, the board concluded that the same predicate findings supporting the charge of “negligent malpractice” also constituted “unprofessional conduct.” We are satisfied that the board’s determination in this respect was based upon an erroneous interpretation of section 12-35-118(2)(s).
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Ricci v. Davis, supra. Because our decision disapproves several of the bases underlying the board’s action, we believe it appropriate to remand the case to the board for a reconsideration of sanctions.
[33] The decision of the board is affirmed in part and reversed in part, and the cause is remanded for further proceedings consistent with the views expressed herein.