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Apr 09, 2015

What Every Dentist Should Know About TSBDE Rule 107.106-.108, Use of Expert Panel, if Faced with a Complaint and Board Investigation.

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I recently represented a dentist before the TSBDE who had spent nearly two years under a cloud of angst, stress, and turmoil dealing with a complaint and ensuing investigation that was brought by a dissatisfied patient who experienced an adverse effect, bleeding after a deep cleaning.  This patient was not pleased with this outcome, attributing it to the deep cleaning performed by the dentist.  Although these feelings experienced by the dentist are frequently associated with one dealing with a complaint and investigation regarding their licensure, the level in which this matter mushroomed  could have been leveled off and handled appropriately much earlier in the process if one had a clearer understanding of how a complaint and investigation is handled by the TSBDE, offering opportunities to challenge the basis of the opinions held by the TSBDE as to alleged violations from the onset, rather than allow it to reach the point where the TSBDE had assured itself, by and through the opinion(s) it attained from one of its independent reviewers, that a violation had occurred, proposing a disciplinary order against this dentist.

The TSBDE’s proposed disciplinary order reflected that this dentist fell below the minimum standard of care regarding the patient, providing that the dentist had engaged in unprofessional and dishonorable conduct with a failure to deal fairly with the patient.  This dentist, who had grown fatigued in dealing with this matter and who faced with the possibility of signing a proposed disciplinary order that would result in a public and permanent mark on the licensure record, hired the firm to assist in the defense of this matter. 

As a licensee, the thought of a complaint with one’s licensing board is frightening and a process that is truly dreadful by any account.   Without the true knowledge of the inner workings of the TSBDE and how the staff conducts investigations or how its opinions are reached, one may often presume that an investigation conducted by the staff is complete and thorough, with opinions in cases involving the standard of care remaining indelibly firm and unchallengeable, offering little opportunity to prevail if further scrutinized or challenged.  This feeling is often exacerbated if one receives a proposed disciplinary order in the mail during the course of the investigation that proposes discipline and containing unfamiliar language with descriptors such as “Agreed Order,” “Findings of Fact,” and “Conclusions of Law.”  These terms, which may seem benign to the uninitiated, are extremely serious and have longstanding , permanent effects.

During review of the matter by the firm, it was discovered that a proposed finding based on an allegation of insufficient documentation was included in the proposed order even though my client had clearly provided documentation to the staff evidencing the documentation at issue.  As a side note, it is advisable to have all proposed orders reviewed carefully by counsel before agreeing to any order as the terms and conditions it contains may not be supported and to agree to otherwise will have far reaching and permanent implications.  The adage that one cannot unring a bell once it has been rung remains true.

More unsettling was the fact that the staff’s entire case turned on a central allegation that my client had fallen below the minimum standard of care in performing a procedure in a single visit that was generally and historically spaced out over multiple visits.  In this instance, a full-mouth scaling and root planning (SRP) in a single visit.  Mind you, there was no allegation that the procedure itself was performed below the minimum standard of care.  Thus, the TSBDE contended that to do a full mouth SRP in one visit, on its face, constituted a violation as this fell below the standard of care, citing that its independent reviewer had opined as to this proposition.  In other words, the TSBDE's position was that a full-mouth SRP in a single visit was not permissible.

The TSBDE, who initiated an investigation following the complaint, employed the use of its “Expert Panel,” under Board rules 107.106-.108, as it is apt to do in many of its cases, and especially cases involving standard of care.  In our review of this matter, and with some exploration, it was discovered that this process was not adhered to per the rule, raising questions as to the reviewer and his/her ultimate conclusion.  Per the rule, “[i]f the preliminary inquiry shows that there is probable cause that an act by a licensee falls below an acceptable standard of care, all the relevant information and records collected by board staff shall be reviewed by an Expert Panel of Reviewers . . . [reporting] the panel's determinations [to the TSBDE staff] based on the review."  Note that the rule provides for multiple reviewers rather than just a single reviewer.  Per the rule, "[e]ach Expert Panel shall include an initial and second Reviewer and, if necessary, a third Reviewer.” 

In layman’s terms, the TSBDE utilizes a multitude of dentists (or hygienists if involving a case dealing with dental hygiene) practicing statewide who have agreed to review its files and to render his or her professional opinion as to whether or not the subject dentist is in violation.  The reviewer’s identity is protected and remains confidential (at least during this phase).  This power to review files in complete anonymity, although useful in theory, often may work to an aggrieved dentist’s detriment if unchecked or, more importantly, unchallenged.  These dentists and hygienists reviewers have been “board approved” and assist with complaints and investigations.  Case files are then sent to the reviewer for a review and opinion with same then presented to the Staff by written report.  Each reviewer is tasked with determining if the aggrieved dentist met the minimum standard of care and the scope of their review is not restricted to the issues that are specifically in the complaint.  In other words, every potential violation is available for review.  Although the rule allows for the selection of a panelist “who [practices] in the same or similar specialty as the licensee,” it is unclear how the selection process works practically (i.e., will the case be sent to a specialist in that field or a general dentist) or how much care is taken to ensure that this process is adequately aligned to ensure a supportable opinion with the facts of that particular case.  This process is somewhat opaque as it is managed by the staff and done internally.  As a consequence of this, one should not be surprised to potentially receive a broad range of potential violations, even those that were not originally complained of in the originating complaint or that the opinions themselves may appear extreme.

One concern often seen in our practice and particularly true in this case, is that a reviewer may be a general practitioner (as opposed to a specialist) and not as knowledgeable with the procedures or practices involved in a case involving a practitioner with more skill and expertise in that particular subject area.  This example is reflected in a case where a general dentist, as opposed to a periodontist, performs scaling and root planing after a diagnosis of periodontitis.  Again, without knowing basic information about the TSBDE’s reviewer, which the TSBDE Staff is extremely reluctant to provide, determining this can prove difficult.  Irrespective of this important consideration, however, and more often than not, the ultimate dispute will turn on whether these members’ opinions will be sufficient to establish a reasonable, prudent dentist standard that will be necessary to establish in order to sustain a violation. 

Understanding the process of who or whom may have reviewed the matter, and the manner in which one’s case had been reviewed in the development of proposed sanctions is critical in determining how best to handle the complaint and investigation, especially if disciplinary action has been proposed per the opinion(s).  This is critical in determining appropriate defenses, if any, challenging the sufficiency of the opinion rendered by the reviewing member, and/or arguing successfully against adverse disciplinary action sought by the TSBDE.  Without question, there are hurdles that make challenging the opinions of these member(s) difficult, but not completely impossible.  Other concerns that may also be at issue which may not be clear on the surface are any conflict(s) of interest with the member and the Respondent.  Another important concern is determining the reviewing member(s)’ competency to review the issue(s) at hand.  Competency in this sense means whether the reviewer was specialized and knowledgeable regarding all the relevant facts of the case.

Ultimately, this particular case resulted in a complete dismissal of the charges and no disciplinary action was entered against this dentist’s license.  Once the firm began to learn and unravel how the Board’s opinion was derived at the staff level, we were able to effectively prepare the necessary defenses and advocate effectively on behalf of our client.  Our ability to refer this matter for independent review to our own network of trusted “reviewers” (i.e., our own experts and consultants), some who had served in an official capacity with the Board or who had served as “expert panelists,” also proved critical in the result that was attained.  Although this story had a happy ending, it was achieved after nearly two long, exhausting years.  This case, like other cases the firm has handled before the TSBDE, ultimately turned on our understanding of the TSBDE’s utilization of expert panelists and the ability to raise appropriate defenses in response.

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