Lagroon v. SCDLLR

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR. THE STATE OF SOUTH CAROLINA In The Court of Appeals Robert J. Lagroon, License No. 3224, Respondent, v. South Carolina Department of Labor, Licensing and Regulation, State Board of Dentistry, Appellant. Appeal From Anderson County J. C. Buddy Nicholson, Jr., Circuit Court Judge Unpublished Opinion No. 2010-UP-419 Submitted September 1, 2010 – Filed September 24, 2010 REVERSED Kenneth P. Woodington and Lynne W. Rogers, both of Columbia, for Appellant. Robert J. Lagroon, pro se, of McCormick, for Respondent. PER CURIAM: The South Carolina State Board of Dentistry (Board) sanctioned Dr. Robert J. Lagroon for certain acts of professional misconduct. After the Administrative Law Court (ALC) affirmed as modified the Board's decision,[1] the circuit court found the Board improperly held Dr. Lagroon to the standard of an orthodontist and reversed the Board's one-year suspension of his license. On behalf of the Board, the South Carolina Department of Labor, Licensing & Regulation (Department) appeals, arguing the suspension was within the Board's statutory authority and the Board did not hold Dr. Lagroon to the standard of an orthodontist. We reverse the circuit court and reinstate the decision of the Board as modified by the ALC.[2] The Administrative Procedures Act governs appellate review of administrative decisions by the Board. Deese v. S.C. State Bd. of Dentistry, 286 S.C. 182, 184, 332 S.E.2d 539, 540-41 (Ct. App. 1985). Appellate review "must be confined to the record." S.C. Code Ann. § 1-23-380(4) (Supp. 2009). Furthermore: The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (a) in violation of constitutional or statutory provisions; (b) in excess of the statutory authority of the agency; (c) made upon unlawful procedure; (d) affected by other error of law; (e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion. S.C. Code Ann. § 1-23-380(5) (Supp. 2009). "A decision is arbitrary if it is without a rational basis, is based alone on one's will and not upon any course of reasoning and exercise of judgment, is made at pleasure, without adequate determining principles, or is governed by no fixed rules or standards." Deese, 286 S.C. at 184-85, 332 S.E.2d at 541. 1. First, the Department asserts the circuit court erred in finding the Board held Dr. Lagroon to the standard of an orthodontist. We agree. A person engages in the practice of dentistry when he charges a fee to: [E]xtract teeth, correct malpositions of the teeth or jaws, or take impressions, or construct, supply, repair, reline, or duplicate artificial teeth as substitutes for natural teeth, or adjust such substitutes, . . . or . . . use X ray for dental treatment or dental diagnostic purposes . . . . S.C. Code Ann. § 40-15-70(2)(b) (2001). When the Board receives a complaint against a licensed dentist, it must investigate the allegations and, in its discretion, may file a formal accusation charging the dentist with a violation of the statutes governing those who practice dentistry. S.C. Code Ann. § 40-15-180(1) (2001). Generally, the Board may discipline a dentist who: (f) has committed a dishonorable, unethical, or unprofessional act that is likely to deceive, defraud, or harm the public; (g) lacks the professional or ethical competence to practice the profession or occupation; * * * (k) violates a provision of this article or of a regulation promulgated under this article; [or] (l) violates the code of professional ethics adopted by the applicable licensing board for the regulated profession or occupation or adopted by the department with the advice of the advisory panel for the professions and occupations it directly regulates. S.C. Code Ann. § 40-1-110 (2001). Specifically, the Board may discipline a dentist who "has employed or permitted an unlicensed or unregistered person to practice dentistry or dental hygiene" or who "has failed to meet the standards of care in the practice of dentistry or dental hygiene or the performance of dental technological work." S.C. Code Ann. § 40-15-190(4) & (14) (2001). The regulation governing the ethical and professional conduct of dentists in South Carolina states that "[t]he dentist's primary obligation of service to the public shall include the delivery of quality care, competently and timely, within the bounds of the clinical circumstances presented by the patient. Quality of care shall be a primary consideration of the dental practitioner." 23A S.C. Code Ann. Regs. 39-11 (1983). This regulation also obligates dentists to "maintain patient records in a manner consistent with the protection of the welfare of the patient. Upon request of a patient or another dental practitioner, dentists shall provide any information that will be beneficial for the future treatment of that patient." Id. In treating their patients, medical professionals must "exercise that degree of care and skill which is ordinarily employed by the profession generally, under similar conditions and in like surrounding circumstances." Jernigan v. King, 312 S.C. 331, 333, 440 S.E.2d 379, 381 (Ct. App. 1993). In an action for medical malpractice, a physician's departure from the standard of care is established by presentation of two types of evidence: (1) "evidence of the generally recognized practices and procedures which would be exercised by competent practitioners in a defendant doctor's field of medicine under the same or similar circumstances" and (2) "evidence that the defendant doctor departed from the recognized and generally accepted standards, practices and procedures in the manner alleged by the plaintiff." Cox v. Lund, 286 S.C. 410, 414, 334 S.E.2d 116, 118 (1985). Both general practitioners licensed in other states and specialists may be qualified to testify to the appropriate standard of care for a general practitioner in South Carolina. Burroughs v. Worsham, 352 S.C. 382, 403-04, 574 S.E.2d 215, 226 (Ct. App. 2002) (finding an internist, a colorectal surgeon, and an Illinois-licensed family practitioner qualified to testify to the standard of care for a South Carolina family practitioner); see also King v. Williams, 276 S.C. 478, 482, 279 S.E.2d 618, 620 (1981) ("No longer is it proper to limit the definition of the standard of care which a medical doctor or dentist must meet solely to the practice or custom of a particular locality, a similar locality, or a geographic area.") (internal citation omitted). We reverse the circuit court's decision and reinstate the decision of the Board as modified by the ALC because the record does not support the circuit court's finding that the Board held Dr. Lagroon to the standard of an orthodontist. A specialist in a medical profession may testify to the standards applicable to general practitioners. Burroughs, 352 S.C. at 403-04, 574 S.E.2d at 226. The record reflects that Dr. Tompkins identified himself as a dentist at the commencement of his testimony and that he was licensed as a dentist in South Carolina prior to becoming an orthodontist. He formed his opinion in this case after reviewing records from both Dr. Lagroon, a dentist, and Dr. Fulmer, an orthodontist. Furthermore, Dr. Tompkins unequivocally stated Dr. Lagroon did not meet the standard of care applicable to "a licensed general dentist providing orthodontic services." In evaluating Dr. Lagroon's treatment of Patient, Dr. Tompkins addressed the standards applicable to dentists in four aspects of treatment: assessment, planning, patient education, and documentation. See Cox, 286 S.C. at 414, 334 S.E.2d at 118 (explaining a physician's departure from the standard of care may be established by articulation of practices and procedures employed by competent practitioners and evidence of the physician's departure from those norms). First, with regard to assessment of a patient's needs, Dr. Tompkins stated, "[Y]ou'd start off with an evaluation of what you've got now. What is it now. Where am I now and where have we got to go." Second, having established a starting point and projected an ending point, he indicated the dentist must develop a treatment plan and demonstrate good judgment in determining whether he possesses the requisite skills and training to execute it. According to Dr. Tompkins, a practitioner who does not recognize his limitations can "get in trouble." Third, Dr. Tompkins stated the professional must educate his patient: "[y]ou have to tell the patient what they need. . . . And then you try to educate them so that they will make the right decision and decide the treatment." Finally, Dr. Tompkins expected a dentist to record his findings and the patient's progress.[3] Dr. Tompkins took issue with Dr. Lagroon's planning and documentation of Patient's treatment, which he classified as a case of medium difficulty for an orthodontist. With regard to planning, Dr. Tompkins stated Patient's case "turned out to be a very bad situation in an untrained person's hands." Although Dr. Lagroon treated Patient's midline issue and planned to replace the missing and malformed teeth and reduce the overjet, his treatment did not address the malocclusion. After reviewing Dr. Lagroon's and Dr. Fulmer's records, Dr. Tompkins determined the effects of Dr. Lagroon's treatment were mixed. According to Dr. Fulmer's records, Patient's midline was relocated to its proper place. However, Dr. Tompkins testified the configuration of Patient's upper braces would have increased, rather than decreased, the severity of the overjet. With regard to a purported one-millimeter decrease in Patient's overjet, Dr. Tompkins stated, "[T]hat's impossible. It just can't happen." Moreover, Dr. Tompkins saw no reason for Patient to have braces on his bottom teeth. He believed Patient's cross bite resulted from Dr. Lagroon's placement and management of Patient's braces. Although Dr. Lagroon never took any impressions from which models could be created, Dr. Tompkins testified a dentist would need a mounted set of models to determine whether a particular treatment will improve or worsen a patient's bite. Upon examination, Dr. Tompkins repeatedly complained that the records Dr. Lagroon produced in response to the Board's subpoena failed to document Patient's condition and omitted important information. Dr. Tompkins found no evaluation of Patient's teeth at the initial presentation, no indication of Patient's complaints, no reference to a malocclusion, no examination findings requiring braces, and confusing references to upper and lower braces and extraction of tooth 7. "There is nothing here about deep bite, open bite, cross bite, [or] protrusion[;] there is nothing in here that would give me any clues as to what the problems were and why the braces were put on." Consequently, he testified, the records had no value in determining Patient's prognosis. With regard to Patient's care, the Board concluded Dr. Lagroon violated Section 40-1-110(f), (g), (k), and (l), as well as Reg. 39-11(1)(B). The Board agreed with Dr. Tompkins's view that Dr. Lagroon failed to plan adequately for Patient's care by failing to prepare essential diagnostic models to assist him in formulating a treatment plan and by failing to recognize Patient's orthodontic needs exceeded his own abilities and training as a practitioner. The Board found that because Dr. Lagroon lacked adequate training to treat Patient, "[t]he course of this case was more adverse to the patient than it should have been." Dr. Lagroon's documentation failures were more pervasive, occurring at both the assessment and planning stages of treatment. The Board recognized Dr. Lagroon provided no documentation of Patient's dental condition prior to commencing treatment, no prognosis or diagnosis, no treatment plan or goals, and no valid purpose for the braces on Patient's lower teeth. Consequently, the record supports the Board's findings and decision regarding Dr. Lagroon's failure to render adequate care to Patient, and the circuit court erred in reversing this decision. 2. Next, the Department asserts the circuit court erred in striking part of the sanction imposed on Dr. Lagroon, because the sanction was well within the Board's statutory authority. We agree. Upon finding the dentist guilty of an offense charged in the formal accusation, the Board may revoke or suspend the dentist's license, reprimand the dentist publicly or privately, "or take other reasonable action short of revocation or suspension including, but not limited to, probation or requiring the person to undertake additional professional training subject to the direction and approval of the [B]oard, . . . and other actions considered appropriate by the board." S.C. Code Ann. § 40-15-200 (2001). In addition, the Board "may require the licensee or registrant to pay a civil penalty of up to ten thousand dollars and the costs of the disciplinary action." Id. In a professional licensing disciplinary matter, imposition of sanctions specified by the authorizing statute for a violation alleged in the formal accusation is not arbitrary or capricious. Deese v. S.C. State Bd. of Dentistry, 286 S.C. 182, 185, 332 S.E.2d 539, 541 (Ct. App. 1985). In such matters, the courts will not require a specific sanction for a particular violation when the statute authorizing a professional board to impose certain sanctions does not do so. Gale v. State Bd. of Med. Examiners of S.C., 282 S.C. 474, 479, 20 S.E.2d 35, 38 (Ct. App. 1984). We reverse the circuit court's decision and reinstate the Board's one-year suspension of Dr. Lagroon's license. The circuit court's order ties its reversal of this sanction to its finding that the Board improperly held Dr. Lagroon to the standard of an orthodontist.[4] In finding the Board applied the correct standard of care, we eradicate the basis for the circuit court's reversal of the one-year suspension. Furthermore, we note the record does not support the circuit court's finding that the Board's decision was arbitrary and capricious. Rather, the Board's order reflects careful consideration of the evidence presented, sound analysis of Dr. Lagroon's records and testimony in light of Dr. Tompkins's expert testimony, and appropriate sanctions aimed at improving the professional services Dr. Lagroon offered. Cf. Deese, 286 S.C. at 184-85, 332 S.E.2d at 541 (holding an arbitrary decision is one that is "without a rational basis, is based alone on one's will and not upon any course of reasoning and exercise of judgment, is made at pleasure, without adequate determining principles, or is governed by no fixed rules or standards"). After finding Dr. Lagroon had permitted an unlicensed person to practice dental hygiene in his office and had provided Patient with substandard care in the areas of planning and recording treatment, the Board imposed two-stage sanctions. In the first stage, the Board suspended Dr. Lagroon's license for one year but provided Dr. Lagroon with the option of avoiding suspension by paying a ten-thousand-dollar fine. In the second stage, the Board placed Dr. Lagroon on probation for five years, required him to complete courses in ethics and recordkeeping, and subjected him to heightened monitoring and reporting requirements during the probationary period. The Board's order conveys an intimate understanding of Dr. Lagroon's violations, and the sanctions therein indicate the Board intended to ensure Dr. Lagroon improved his practices before taking on additional orthodontic patients. Consequently, the circuit court erred in reversing the suspension of Dr. Lagroon's license. REVERSED. HUFF and GEATHERS, JJ., and CURETON, A.J., concur. [1] The ALC struck that portion of the Board's decision that found Dr. Lagroon guilty of violating Section 40-15-212 of the South Carolina Code (2001), which establishes criminal penalties for aiding or abetting a person in the unlawful practice of dentistry or dental hygiene. [2] We decide this case without oral argument pursuant to Rule 215, SCACR. [3] This requirement corresponds to Reg. 39-11(1)(B), which requires dentists to maintain patient records in a manner consistent with the patient's welfare and to produce upon request "any information that will be beneficial for the future treatment of that patient." [4] Presumably, the circuit court did not reverse all the Board's sanctions because the Board's finding that Dr. Lagroon permitted Assistant's unauthorized practice of dental hygiene remained intact.