Opinion
No. 352278
03-18-2021
In re VICTORIA MONIQUE LUCAS-PERRY, D.D.S. BUREAU OF PROCESSIONAL LICENSING, Petitioner-Appellee, v. VICTORIA MONIQUE LUCAS-PERRY, D.D.S., Respondent-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Board of Dentistry
LC No. 18-022650 Before: BORRELLO, P.J., and BECKERING and SWARTZLE, JJ. PER CURIAM.
Respondent appeals as of right the order of the Disciplinary Subcommittee of the Michigan Board of Dentistry (DSC) concluding that respondent violated MCL 333.16221(a) (negligence or failure to exercise due care) and (h) (violation of Mich Admin Code, R 338.11120(2) for failing to make and maintain proper dental treatment records). On appeal, respondent argues that there was not competent, material, and substantial evidence to support the DSC's conclusion that respondent was negligent by insufficiently documenting the need for the treatment given to the patient, RJ. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
This case arises out of an administrative complaint filed by petitioner, which alleged that respondent's treatment of RJ was not supported by adequate documentation. Specifically, petitioner alleged that respondent's treatment plan failed to document the diagnoses to support the need for the treatment consisting of crowns on teeth 3, 14, and 18; fillings on teeth 7, 12, and 20; extraction of teeth 8, 9, 10, and 30; and a bridge for teeth 4 through 6. Further, respondent also extracted tooth 3 without documenting the need for the extraction. As relevant to this appeal, petitioner alleged that this conduct constituted violations of MCL 333.16221(a) and (h). Respondent answered the complaint and asserted that she properly documented the diagnosis for each tooth and that the x-rays evidenced the infections supporting the need for the tooth extractions. Accordingly, respondent denied that she violated MCL 333.16221(a) and (h).
At a hearing before an administrative law judge (ALJ), petitioner called Dr. Mark Barsamian, D.D.S., as an expert witness. Barsamian testified that he reviewed RJ's chart and x-rays, although he could not remember whether he reviewed only photocopies of the x-rays or if he had also received digital images of the x-rays. Barsamian also testified that he reviewed a black-and-white version of RJ's chart, that he never received a color version of the chart where notations had been made in red, and that he never received the charting symbols document that explained how respondent and other dentists in the practice documented their patients' charts. Barsamian nonetheless concluded, on the basis of the chart and x-rays, that respondent's documentation for teeth 3, 4, 7, and 20 did not meet the standard of care. He opined that because the diagnosis and need for the given treatment with respect to each of these four teeth was not obvious from the x-rays and clinical charting, a written narrative and diagnosis was necessary to properly document the treatment plan. However, there was no written documentation showing the necessity of the treatment for teeth 4, 7, and 20.
Barsamian concluded that the x-rays for teeth 8, 9, and 10 established the need to extract those teeth, thus providing sufficient documentation of the need for treatment of those teeth. --------
Barsamian also opined that the documentation for tooth 3 was insufficient. He explained that the documentation that was provided for tooth 3 indicated that the treatment plan was to use a crown or perform a root canal. Although Barsamian indicated that a root canal and extraction treat the same condition, he did not see any documentation regarding the change to extraction in this case and he did not see an obvious need for extracting tooth 3. Barsamian further indicated that it was not negligent to use a shorthand symbol, as apparently was done in this case, to document the need for a root canal. However, Barsamian indicated that he did not know the meaning of that symbol before the hearing because he had not seen the document explaining respondent's charting symbols. Barsamian acknowledged that there was a signed consent form in which RJ consented to the extractions, including the extraction of tooth 3.
With respect to his opinion on all four teeth, Barsamian testified: "I want[] to make clear that I'm not saying that any of the treatment for those specific teeth was wrong, only that there's not evidence to show that it was right."
Dr. Harold Krauseneck, D.D.S., testified as an expert witness on behalf of respondent. Krauseneck reviewed RJ's chart and x-rays and concluded that respondent's documentation followed the standard of care and that there was sufficient documentation to show the need of the given treatment for each tooth. Krauseneck provided testimony of the specific disease processes and conditions that were evident from the x-rays of each tooth. Further, Krauseneck believed that RJ's signed consent form for the extraction of tooth 3 was proper documentation of the treatment.
Petitioner and respondent each admitted exhibits into evidence at the hearing that included dental records and x-rays for RJ. Respondent also admitted into evidence a document explaining the charting symbols and abbreviations used in the practice.
Following the hearing, the ALJ issued a proposed decision concluding that petitioner failed to establish by a preponderance of the evidence that respondent violated MCL 333.16221(a) or (h). The ALJ found that Barsamian's conclusions should be given little evidentiary weight because Barsamian's concessions regarding reliance on photocopies of the x-rays and not being provided with respondent's charting code system suggested that his opinions were based on inaccurate or incomplete foundational information and that Barsamian's criticisms were merely based on what he may have done differently. The ALJ found Krauseneck's testimony credible and noted that Krauseneck had reviewed the digital versions of the x-rays, a color-coded patient chart, and respondent's charting code system.
After petitioner filed exceptions to the ALJ's proposed decision, the DSC entered its final order rejecting the conclusion of the ALJ and instead concluding that respondent violated MCL 333.16221(a) and (h). The DSC credited Barsamian's testimony that respondent's documentation as a whole did not support the treatment provided for teeth 3, 4, 7, and 20. The DSC also found that Barsamian consistently testified that respondent's documentation, as a whole, was cursory, inadequate, and failed to meet the standard of care. Krauseneck, the DSC noted, assumed that RJ rejected the root canal on tooth 3 and chose to have the tooth extracted instead based on the RJ's signed consent form even though there was no indication that respondent had documented that such a choice had been made by the patient. The DSC found that Barsamian's conclusions regarding respondent's documentation were more persuasive than those of Krauseneck.
On the basis of the entire record, the DSC concluded that petitioner established by a preponderance of the evidence that respondent's conduct was negligent or a failure to exercise due care, in violation of MCL 333.16221(a), and evidenced a failure to make and maintain dental treatment records with the requisite information, contrary to Mich Admin Code, R 338.11120(2), thereby violating MCL 333.16221(h). The DSC imposed a term of probation of one day to six months and a fine of $4,000.
Respondent now appeals, arguing that the DSC's final order was not supported by competent and substantial evidence.
II. STANDARD OF REVIEW
This Court reviews final orders of disciplinary subcommittees issued pursuant to Article 15 of the Public Health Code, MCL 333.16101 et seq., under the standards set forth in Const 1963, art 6, § 28. Dep't of Community Health v Risch, 274 Mich App 365, 371 & n 2; 733 NW2d 403 (2007); see also Bureau of Prof Licensing v Butler, 322 Mich App 460, 464; 915 NW2d 734 (2017). Pursuant to Const 1963, art 6, § 28,
All final decisions, findings, rulings and orders of any administrative officer or agency existing under the constitution or by law, which are judicial or quasi-judicial and affect private rights or licenses, shall be subject to direct review by the courts as provided by law. This review shall include, as a minimum, the determination whether such final decisions, findings, rulings and orders are authorized by law; and, in cases in which a hearing is required, whether the same are supported by competent, material and substantial evidence on the whole record. . . .
III. ANALYSIS
In this case, the DSC reached a different conclusion than the ALJ. "In reviewing the recommended findings of fact and conclusions of law of the hearings examiner and the record of the hearing, a disciplinary subcommittee . . . may revise the recommended findings of fact and conclusions of law as determined necessary by the disciplinary subcommittee . . . ." MCL 333.16237(3). "[T]he disciplinary subcommittee is not bound by the recommended findings of the hearing officer." Dep't of Community Health v Anderson, 299 Mich App 591, 599; 830 NW2d 814 (2013), citing MCL 333.16237(4).
Specifically, the DSC in the instant case found that respondent violated MCL 333.16221(a) and (h), which provide the following bases for the DSC to impose sanctions:
(a) Except as otherwise specifically provided in this section, a violation of general duty, consisting of negligence or failure to exercise due care, including negligent delegation to or supervision of employees or other individuals, whether or not injury results, or any conduct, practice, or condition that impairs, or may impair, the ability to safely and skillfully engage in the practice of the health profession.
* * *
(h) A violation, or aiding or abetting in a violation, of this article or of a rule promulgated under this article.
With respect to MCL 333.16221(h), the DSC found that respondent violated Mich Admin Code, R 338.11120(2), which provides as follows:
(2) The dental treatment records for patients shall include all of the following information:
(a) Medical and dental history.
(b) The patient's existing oral health care status and the results of any diagnostic aids used.
(c) Diagnosis and treatment plan.
(d) Dental procedures performed upon the patient, that specify both of the following: (i) The date the procedure was performed.
(ii) Identity of the dentist or the dental auxiliary performing each procedure.
(e) Progress notes that include a chronology of the patient's progress throughout the course of all treatment.
(f) The date, dosage, and amount of any medication or drug prescribed, dispensed, or administered to the patient.
(g) Radiographs taken in the course of treatment. If radiographs are transferred to another dentist, the name and address of that dentist shall be entered in the treatment record.
On appeal, respondent asserts that she does not contest whether the DSC's order was authorized by law. Rather, her appellate argument is limited to whether the DSC's ruling was supported by competent and substantial evidence. This Court has previously set forth the applicable framework for analyzing this issue as follows:
When reviewing whether an agency's decision was supported by competent, material, and substantial evidence on the whole record, a court must review the entire record and not just the portions supporting the agency's findings. " 'Substantial evidence' is evidence that a reasonable person would accept as sufficient to support a conclusion. While this requires more than a scintilla of evidence, it may be substantially less than a preponderance."
Moreover, if the administrative findings of fact and conclusions of law are based primarily on credibility determinations, such findings generally will not be disturbed because it is not the function of a reviewing court to assess witness credibility or resolve conflicts in the evidence. A reviewing court may not set aside factual findings supported by the evidence merely because alternative findings could also have been supported by evidence on the record or because the court might have reached a different result. [Risch, 274 Mich App at 372-373 (citations omitted).]
Respondent in her appeal, argues that Barsamian's opinions and conclusions were not credible in light of the dental records and x-rays in evidence, as well as Barsamian's apparent lack of access to the document explaining respondent's charting symbols and alleged lack of access to the digital x-rays. Notably, the evidence did not conclusively establish that Barsamian only viewed photocopies of the x-rays but merely showed that Barsamian did not remember whether he had been given the digital x-rays. Respondent further argues that the record evidence, contrary to the conclusion of the DSC, actually supports the conclusion that respondent did not violate the statutory provisions at issue. In support of this argument, respondent relies on her interpretation of the evidentiary exhibits and the opinions and conclusions of Krausenek given during his testimony at the hearing, and respondent also explains how Barsamian's testimony can be understood to be consistent with respondent's view of the evidence. Further, respondent attacks the soundness of Barsamian's conclusions and opinions that were unfavorable to respondent on the basis that they were allegedly predicated on incomplete or inaccurate information.
Respondent's arguments ask this Court to resolve the admittedly conflicting evidence present in the record differently than the DSC resolved those conflicts. Respondent also requests this Court disturb the DSC's credibility determinations. These requests are contrary to the proper standard of review. See Risch, 274 Mich App at 372-373. Our review of the record leads us to conclude that there is more than a scintilla of evidence to support the DSC's conclusions such that a reasonable person would accept the evidence as sufficient to support the DSC's decision; we therefore conclude that the DSC's decision was supported by competent, material, and substantial evidence, and we will not reverse the DSC's factual findings merely because the record evidence may also have supported a different conclusion. Id.; see also McBride v Pontiac Sch Dist (On Remand), 218 Mich App 113, 123; 553 NW2d 646 (1996) ("When there is sufficient evidence, a reviewing court may not substitute its discretion for that of the administrative tribunal, even if the court might have reached a different result. Great deference must be given to an agency's choice between two reasonable differing views as a reflection of the exercise of administrative expertise.") (citation omitted).
Next, respondent argues that the entirety of Barsamian's expert opinion testimony was inadmissible under MRE 702 because Barsamian's opinions and conclusions were based on inaccurate and incomplete information since Barsamian did not receive documentation of respondent's chart coding system and did not recall receiving digital copies of RJ's x-rays. Respondent thus contends that Barsamian's opinions and conclusions were inadmissible under MRE 702 because they were not based on reliable methodology or an adequate foundation, and respondent further contends that the DSC's decision was therefore not based on "competent" evidence. Competent evidence in this context means evidence that is admissible. See McBride, 218 Mich App at 122 (stating that, for purposes of Const 1963, art 6, § 28, incompetent evidence is evidence that is "inadmissible").
MRE 702 provides as follows:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
Respondent essentially argues on appeal that the ALJ failed to fulfill its role under MRE 702 as gatekeeper with respect to permitting Barsamian's expert opinion testimony. See, e.g., People v Unger, 278 Mich App 210, 217-218; 749 NW2d 272 (2008) (generally explaining the court's gatekeeper role with respect to expert testimony). However, respondent stipulated to Barsamian being permitted to testify as an expert under MRE 702 at the hearing, thereby effectively conceding that Barsamian and his expert opinion met the standard of MRE 702 and negating the need for the ALJ to provide an analysis on the record under the above standard. Hence, respondent cannot now claim error on the basis that the ALJ did not properly full its duties as gatekeeper. "A party may not claim as error on appeal an issue that the party deemed proper in the trial court because doing so would permit the party to harbor error as an appellate parachute." Hoffenblum v Hoffenblum, 308 Mich App 102, 117; 863 NW2d 352 (2014) (quotation marks and citation omitted)
Moreover, respondent attempted to impeach the credibility of Barsamian's opinions and conclusions during cross-examination at the hearing below. See Unger, 278 Mich App at 220 (recognizing that the credibility of an expert's opinions may be impeached on cross-examination, which does not necessarily render the expert's opinions unreliable or inadmissible and instead leaves a question of credibility to be resolved by the trier of fact). Respondent's counsel questioned Barsamian about whether he received digital images of the x-rays and about Barsamian's lack of awareness about the meaning of certain symbols in RJ's chart as a result of having not been provided with respondent's charting system document. Barsamian subsequently testified, however, that even accepting that respondent's charting system demonstrated that a mark in RJ's chart meant that a root canal was necessary on tooth 3, there still was insufficient documentation to establish that the treatment plan had been changed to performing an extraction of that tooth. Respondent's counsel also objected, on the ground that Barsamian could not recall whether he saw digital images of the x-rays, to certain questions posed by petitioner to Barsamian regarding Barsamian's conclusions from the x-rays. Respondent argued in written closing arguments submitted to the ALJ that Barsamian's testimony was based on incomplete information and was inferior to the expert opinions of Krauseneck.
Respondent's argument is more appropriately understood as a challenge to the credibility or soundness of Barsamian's particular opinion, which is not really a question of admissibility but of evidentiary weight. See id. (reasoning in determining that expert testimony was not erroneously admitted at trial that the "circuit court properly focused on the scientific validity of [the expert's] methods rather than on the credibility or soundness of his particular opinions"). "When expert witnesses offer conflicting opinions, it is solely for the [trier of fact] to determine which expert is more credible." Id. In this case, after respondent advanced her argument below, it was up to the DSC to make the final decision regarding Barsamian's credibility. MCL 333.16237(3). Our appellate review of the DSC's credibility determination does not involve opining merely on whether we would have decided that issue differently. Risch, 274 Mich App at 372-373.
Affirmed. No costs are awarded. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Jane M. Beckering
/s/ Brock A. Swartzle