Opinion
No. HHB CV 08-4016782
January 26, 2010
Memorandum of Decision
The plaintiff, Douglas Macko, D.M.D., appeals from the final decision of the defendant Connecticut state dental commission (commission) imposing a civil penalty and placing the plaintiff on probation based on the commission's findings that the plaintiff rendered care that fell below the standard of practice and that he utilized dental assistants improperly. For the following reasons, the court affirms the commission's decision and dismisses the appeal.
I
At all relevant times in this case, the plaintiff has held a license to practice dental medicine in Connecticut. (Return of Record (ROR), Vol. I, Memorandum of Decision (Mem.) p. 5.) In March 2006, the department of public health (department) filed a four-count statement of charges against the plaintiff. Counts one and two alleged deficiencies in the care of two children under the age of three. In count three, the department claimed that the plaintiff's dental records, treatment, and billing practices concerning AP, an eight-year-old, fell below the standard of care. Count four alleged that the plaintiff was responsible for the improper practice of using dental assistants to take impressions and to perform services that required a licensed dental hygienist.
A three-person panel of commission members conducted hearings on three separate days in 2006. At the conclusion of these sessions, the commission granted the plaintiff's motion to dismiss counts one and two. After hearing additional evidence on counts three and four, the panel drafted a proposed decision. The full commission reviewed this proposal and rendered a final decision on February 20, 2008. The commission found that the department had proven many, although not all, of the allegations in counts three and four. Based on these findings, the commission ordered that the plaintiff pay a civil penalty of $10,000 on each of the two counts. The commission also placed the plaintiff's license on probation for two years, during which time the plaintiff must employ another dentist to monitor his work and must attend courses in record-keeping and ethics.
Oral argument took place on May 8, 2009 before Judge Henry S. Cohn. Subsequently, Judge Cohn recused himself and the case was reassigned to the undersigned judge. The parties waived reargument. The undersigned has listened to the tape of the May 2009 oral argument.
II
Under the Uniform Administrative Procedure Act, General Statutes § 4-166 et seq., judicial review of an agency decision is very restricted. See MacDermid, Inc. v. Dept. of Environmental Protection, 257 Conn. 128, 136-37, 778 A.2d 7 (2001). Section 4-183(j) of the General Statutes provides as follows: "The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court shall affirm the decision of the agency unless the court finds that substantial rights of the person appealing have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) in excess of the statutory authority of the agency; (3) made upon unlawful procedure; (4) affected by other error of law; (5) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion." Stated differently, "[j]udicial review of an administrative agency decision requires a court to determine whether there is substantial evidence in the administrative record to support the agency's findings of basic fact and whether the conclusions drawn from those facts are reasonable." (Internal quotation marks omitted.) Schallenkamp v. DelPonte, 229 Conn. 31, 40, 639 A.2d 1018 (1994). "It is fundamental that a plaintiff has the burden of proving that the [agency], on the facts before [it], acted contrary to law and in abuse of [its] discretion." (Internal quotation marks omitted.) Murphy v. Commissioner of Motor Vehicles, 254 Conn. 333, 343, 757 A.2d 561 (2000).
III
The commission derived support for many of its findings and conclusions from the testimony of Leslie Perrotti, the mother of AP. Perrotti was also a dental assistant formerly employed by the plaintiff who left her position as a result of an employment dispute. The plaintiff's initial claim stems from the fact that the typewritten text of the commission's February 20, 2008 decision does not contain any specific finding that the commission deemed Perrotti's testimony credible. Instead, the typewritten portion of the decision states: "[t]he Commission finds the testimony of Dr. Gatehouse, Dr. Baron, Dr. Thal and Dr. Balaski to be credible and reliable. The Commission also called Leslie Perrotti, a dental assistant who was employed by respondent and is the mother of AP." (Mem., p. 10.)
The department called Drs. Gatehouse, Baron, and Thal as expert witnesses. Dr. Balaski was a member of a legislative committee that reviewed the scope of practice for dental assistants. (Mem., p. 10.)
Page 10 of the decision, however, contains a handwritten note in the margin stating: "[t]he commission finds the testimony of Leslie Perrotti to be reliable and credible. JPS 2/20/08." (Mem., p. 10.) The plaintiff nonetheless contends that, even if the initials JPS stand for Jeanne P. Strathearn, chairperson of the commission, it is not clear from this note whether the entire commission endorsed this finding.
Resolution of this issue is important to the decision in this appeal. Perrotti was the key witness to testify against the plaintiff. Without the handwritten notation, the commission's decision, stating that it credited several other witnesses but only that it "called" Perrotti as a witness, leaves the negative inference that it did not credit Perrotti's testimony.
In an attempt to clarify this matter, the commission has submitted the minutes of the February 20, 2008 commission meeting. Those minutes reveal that one of the commission members made a motion to add language to the proposed decision stating that the commission found the testimony of Leslie Perrotti to be credible and reliable. The commission unanimously passed the motion. Thus, the additional handwritten language in the decision finding Perrotti credible and reliable is the decision of the entire commission and not just of the chairperson.
The commission originally moved in court to supplement the administrative record with minutes of the February 20 meeting, but the commission withdrew that motion at oral argument. After oral argument, in response to a request from the court, the parties supplied supplemental memoranda on this issue. The commission included the pertinent minutes in its memorandum. The plaintiff has moved to strike a portion of the minutes — a motion that the court will address below — but has withdrawn any objection to the court's consideration of the minutes in the commission's memorandum as part of the procedural history of the case.
The court nonetheless adds that the commission's method of recording the amendment to its decision by inserting a handwritten sentence into a printed decision was unprofessional. To avoid the problems that would inevitably arise when using this sort of shortcut, the commission should simply have made the change on a word processor and issued a revised, fully printed decision.
The plaintiff additionally moves to strike the substance of the minutes that memorialize the commission's motion on the ground that only two commission members of the seven who were present and voting on February 20 actually heard Perrotti testify during the earlier hearings. While there is no dispute about the factual premise of the plaintiff's argument, it has no validity on the merits. General Statutes § 4-179(a) provides: "When, in an agency proceeding, a majority of the members of the agency who are to render the final decision have not heard the matter or read the record, the decision, if adverse to a party, shall not be rendered until a proposed final decision is served upon the parties, and an opportunity is afforded each party adversely affected to file exceptions and present briefs and oral argument to the members of the agency who are to render final decision." Thus, there is no requirement that all members of the decision-making entity actually hear all the witnesses. In this case, the commission stated in its final decision that it "reviewed the panel's proposed decision in accordance with provisions of General Statutes § 4-179." (Mem., p. 2.) A presumption of regularity attaches to the commission's statement that it complied with § 4-179. See Brookfield v. Candlewood Shores Estates, Inc., 201 Conn. 1, 6, 513 A.2d 1218 (1986). The plaintiff has not proven, or even alleged, any basis to overcome this presumption. In fact, the minutes of the February 20 meeting also reveal that the full commission heard oral argument from counsel for the plaintiff before adopting the panel's proposed decision. Accordingly, the court denies the plaintiff's motion to strike portions of the minutes and rejects the plaintiff's challenge to the typewritten addition to the memorandum of decision.
Shelton v. Statewide Grievance Committee, 277 Conn. 99, 890 A.2d 104 (2006), and Irving v. Statewide Grievance Committee, 96 Conn.App. 335, 900 A.2d 77 (2006), relied on by the plaintiff, are not to the contrary. Those cases did not involve the rule created under § 4-179(a).
IV
The plaintiff next challenges the commission's decision on count four. The first component of this challenge focuses on the commission's conclusion, regarding paragraph 41 of the amended charges, that the plaintiff allowed one or more dental assistants to take impressions of teeth in violation of state law. (Mem., p. 14.) The plaintiff relies on the following italicized language in General Statutes § 20-112a: "A licensed dentist may delegate to dental assistants such dental procedures as the dentist may seem advisable . . . provided such assistants may not engage in: . . . (5) the taking of any impression of the teeth or jaws or the relationship of the teeth or jaws for the purpose of fabricating any appliance or prosthesis." (Emphasis added.) The plaintiff argues that the dental assistants accused of improperly taking dental impressions did so solely for study models and that only Perrotti testified that she took impressions for other purposes.
Because the plaintiff appears to be correct concerning the other dental assistants, the plaintiff's argument reduces to a challenge to Perrotti's credibility regarding her own actions. While the plaintiff points to reasons to discredit Perrotti's testimony, those reasons were for the commission to consider. On administrative appeal, the court must defer to the agency's assessment of the credibility of witnesses on "the basis of its firsthand observation of their conduct, demeanor and attitude." (Internal quotation marks omitted.) Goldstar Medical Services, Inc. v. Dept. of Social Services, 288 Conn. 790, 830, 955 A.2d 15 (2008). Here, as discussed, the agency found Perrotti's testimony credible and the court must defer to that finding. Upon crediting her testimony, the commission had substantial evidence upon which to rest its conclusion that a dental assistant improperly took dental impressions. (ROR, Vol. V, pp. 44-45.) See Sweetman v. State Elections Enforcement Commission, 249 Conn. 296, 331, 732 A.2d 144 (1999) (the substantial evidence rule is "similar to the sufficiency of evidence standard applied in jury verdicts, and evidence is sufficient to sustain an agency finding if it affords a substantial basis of fact from which the fact in issue can be reasonably inferred"). (Internal quotation marks omitted.)
Plaintiff's counsel thoroughly cross-examined Perrotti at the administrative hearing. (ROR, Vol. V, pp. 51-78, 81-85.)
The other component of count four challenged by the plaintiff is the commission's conclusion, regarding paragraphs 41-43 of the amended charges, that dental assistants routinely performed services that required a dental hygienist's license and that the plaintiff routinely billed for such services. (Mem., pp. 14-16.) The plaintiff again argues that these charges depended on testimony of Perrotti and that the commission either did not believe or should not have believed her testimony. As discussed, however, the commission did credit her testimony and had the authority to do so. Therefore, there is no merit to the second component of the plaintiff's challenge to count four.
For example, Perrotti, who was not a hygienist, testified that she would perform recall examinations and prophylaxes (ROR, Vol. V, pp. 41-49) — work that the commission found falls within the purview of dental hygiene. See General Statutes § 20-126l(3) ("[t]he `practice of dental hygiene' means the performance of educational, preventive and therapeutic services including: Complete prophylaxis . . ."). Perrotti also testified that Kara LeDuc, another dental assistant, performed dental hygiene. (ROR, Vol. V, p. 46.) Although LeDuc denied doing so (ROR, Vol. VI, pp. 246-47), the commission apparently relied on Perrotti's testimony to conclude that LeDuc did do work requiring a license as a dentist or hygienist. (Mem., p. 15.)
The basis for the commission's additional conclusion that the plaintiff improperly billed for hygienist's services is not entirely clear. The citation in the commission's finding of facts (Mem., p. 9) and in the commission's superior court brief (Defendant's brief, p. 5) to pages 48-49 of Perrotti's testimony does not lend support to the proposition. (ROR, Vol. V, pp. 48-49.) The memorandum of decision also cites to department exhibit 32. (Mem., p. 15.) Exhibit 32 consists of forty-four pages of billing records that do not specifically identify whether a dental assistant performed hygienist services. The plaintiff, however, does not brief this issue and therefore the court considers it abandoned. See Merchant v. State Ethics Commission, 53 Conn.App. 808, 818, 733 A.2d 287 (1999). In addition, the testimony of Perrotti concerning other misconduct supplies a sufficient basis for a finding that the plaintiff violated count four.
The plaintiff's critique of the commission's reliance on the testimony of Pamela Szymanoski is beside the point. The testimony of Perrotti alone supplied the commission a sufficient basis to find a violation of count four.
IV
The plaintiff attacks three aspects of the commission's finding that the department proved count three of the charges. The first is the finding that the plaintiff failed to document a diagnosis or a treatment plan for AP in the record. (Mem., pp. 12-13.) The parties agree that this finding rests on the expert testimony of Barnet B. Baron, a board certified pediatric dentist (ROR, Vol. IV, p. 20.) Baron testified at various points that the plaintiff's records did not "support" intravenous sedation (ROR, Vol. IV, pp. 30-31), were "not clear" whether the plaintiff removed maxillary braces ( Id., p. 35), were "unclear" concerning work on the lower teeth ( Id., p. 36), left him "unsure" concerning an appliance ( Id.), were "a little confusing" regarding the type of appliance used ( Id., pp. 38-39), were "not appropriate" to evaluate the accuracy of the facial profile ( Id., pp. 40-41), were not "proper" to make a diagnosis ( Id., pp. 60-61), and were "incomplete" regarding whether there was an orthodontic problem or a skeletal problem. ( Id., p. 78.) This testimony provided a sufficient basis for the commission to conclude that the plaintiff failed to put sufficient information in AP's record to justify a diagnosis or treatment plan. In addition, the commission relied on its own review of the records (Mem., pp. 2, 13), which it was fully entitled to do. See Levinson v. Board of Chiropractic Examiners, 211 Conn. 508, 525, 560 A.2d 403 (1989).
The plaintiff additionally contends that, by finding the plaintiff's record-keeping to be a violation of the standard of care, the commission engaged in "rulemaking with no articulated standard, which is both arbitrary and capricious." (Plaintiff's brief, p. 15.) The plaintiff supplies no authority or explanation for this contention. General Statutes § 20-114(a) provides that the commission may take action on a variety of grounds, including "(2) proof that a practitioner has become unfit or incompetent or has been guilty of cruelty, incompetence, CT Page 3753 negligence or indecent conduct toward patients." (Emphasis added.) The fact that the commission may take action for a practitioner's "negligence" essentially means that the commission may act when there is a violation of the standard of care. See Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009). Thus, there is a statutory basis for the commission's actions. No legislature or agency, however, could possibly define the precise standard of care for every type of dental procedure. The definition in each instance is necessarily left to expert witnesses and to the expertise of the commission. That fact does not make the commission's actions arbitrary and capricious. The plaintiff had ample notice of the specific manner in which the department alleged that the plaintiff had violated the standard of care. There was, therefore, nothing improper about the commission's decision in finding a violation.
The second challenged aspect of the finding of a violation on count three is the commission's conclusion that the plaintiff breached the standard of care in the treatment of AP by failing to take a cephalometric x-ray. There was no dispute that the plaintiff did not take such an x-ray. The only issue was whether that decision was a breach of the standard of care. Baron testified that a cephalometric x-ray was necessary in this case to determine whether AP had a functional crossbite, caused ultimately by habit, or a true skeletal defect and an underdeveloped jaw. (ROR, Vol. IV, pp. 40-41.) He added that this procedure was part of the "basic criteria for doing orthodontics." ( Id., p. 51.) This testimony, along with the commission's own expertise, provided a sufficient basis for the commission to find a violation of the standard of care. (Mem., p. 13.)
A cephalometric x-ray is a lateral skull x-ray. (Mem., p. 7 n. 8.)
The plaintiff's final challenge to count three centers on the commission's conclusion that it fell below the standard of care for the plaintiff to bill and accept payment for "comprehensive" orthodontic treatment even though AP did not yet have all of his adult dentition. The evidence establishes that the plaintiff originally billed the insurance company for full or comprehensive orthodontic treatment. Subsequently, AP discontinued treatment with the plaintiff and, either for that reason or because he did not have all his adult teeth, AP apparently never received braces on his lower teeth. Appropriately, the plaintiff's billing assistant notified the insurance company of the termination of services to AP and sent back any insurance payments received for treatments that the plaintiff did not render. (ROR, Vol. II, p. 158; Vol. VI, pp. 64-65, 69-70, 161-63.)
Accordingly, there is a lack of substantial evidence to conclude that the plaintiff falsely billed the insurance company or received insurance monies to which he was not entitled, which is the real thrust of the commission's finding of a violation of the standard of care for this segment of count three. Although the testimony established that it was a violation of the standard of care to commence comprehensive orthodontic treatment before AP had lost all his adult teeth (ROR, Vol. IV, pp. 48-49), and it may have been premature for the plaintiff to label the plaintiff's treatment as "comprehensive," there was no expert testimony that the plaintiff violated the standard of care in his billing practices. From all the evidence, the insurance company paid only for services actually rendered. The commission accordingly erred in finding a violation of the standard of care in this regard.
The commission devotes only one conclusory sentence in its brief to this issue.
The commission's erroneous finding with regard to this component of count three nonetheless did not affect the plaintiff's "substantial rights." General Statutes § 4-183(j). The commission properly found that the plaintiff violated the standard of care in his record-keeping and in commencing orthodontic treatment without a cephalometric x-ray. Either of these two findings provides a sufficient basis for the commission to have concluded that the department proved count three of its allegations. The commission's invalid finding with regard to billing practices is thus harmless error. See Levy v. Commission on Human Rights Opportunities, 236 Conn. 96, 110, 671 A.2d 349 (1996).
As mentioned, the commission found that the department had failed to prove several other specifications of count three, yet nonetheless found liability on that count.
V
The plaintiff having failed to sustain the grounds for its appeal, the appeal is dismissed.
It is so ordered.