Opinion
No. 1272 C.D. 2011
07-13-2012
Gerald H. Smith, D.D.S., Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Dentistry, Respondent
BEFORE: HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE LEAVITT
Gerald H. Smith, D.D.S., petitions for review of an adjudication of the Pennsylvania State Board of Dentistry (Board) that sanctioned him for providing medical treatments that exceeded the bounds of his dental license. Smith contends that the Board's findings of fact are not supported by substantial evidence because they are based entirely on hearsay that is not corroborated. We agree and reverse.
On July 18, 2008, the Bureau of Professional and Occupational Affairs (Bureau) issued Smith an order to show cause why his license should not be suspended. The order to show cause alleged that Smith had engaged in unprofessional conduct with respect to two patients in violation of the Dental Law, Act of May 1, 1933, P.L. 216, as amended, 63 P.S. §§ 120-130k. Specifically, it alleged that Smith advised a patient, D.E., to stop taking a thyroid medication prescribed by her physician; directed her to use progesterone cream; and did kinesiology testing, a type of pseudo-science muscle test, on D.E. The show cause order also alleged that on three occasions in 2006, Smith had prescribed a medication, Nature-Throid, for a patient, N.P., which was not authorized by his dental license and not recorded in N.P.'s dental records. The Bureau asserted that these above-listed actions constituted unprofessional conduct in violation of Section 4.1(a)(8) of the Dental Law, 63 P.S. §123.1(a)(8), and in violation of its regulation at 49 Pa. Code §33.208(a)(3), which requires prescriptions to be listed in the patient's dental records. Smith denied the allegations in his answer, and the matter was heard before a hearing examiner.
Section 4.1 of the Dental Law states, in relevant part, as follows:
(a) The board shall have authority, by majority action, to refuse, revoke or suspend the license of any dentist or dental hygienist or certificate of an expanded function dental assistant for any or all of the following reasons:
63 P.S. §123.1(a)(8), added by the Act of Dec. 20, 1985, P.L. 513, as amended.
***
(8) Engaging in unprofessional conduct. For purposes of this clause (8), unprofessional conduct shall include any departure from, or failure to conform to, the standards of acceptable and prevailing dental or dental hygiene practice and standard of care for expanded function dental assistants in which proceeding actual injury to the patient need not be established.
Sarah Buchanan, M.D., an obstetrics and gynecology resident at The Penn State Milton S. Hershey Medical Center (Medical Center), testified as a fact witness for the Bureau. She stated that on March 6, 2007, she interviewed D.E., who was being treated at the Medical Center for hypothyroidism. D.E. informed Buchanan that one year earlier, Smith had advised her to stop taking her thyroid medication, Synthroid, and to replace it with Armour Thyroid, which is known as "Nature-Throid." D.E. told Buchanan that she had followed Smith's advice, believing that Armour Thyroid was a more natural approach to thyroid management. D.E. stated that Smith was providing D.E. orthodontia treatment. Also under Smith's advice, D.E. began using a progesterone cream, lest she develop uterine or ovarian cancer from using a Climara Propatch for birth control. D.E. also reported that Smith did kinesiology testing, which is muscle testing done to determine whether a patient needs certain nutritional supplements. Concerned about D.E.'s weight loss, her general depression and fatigue, Buchanan complained to the Dental Board about Smith's actions with respect to D.E. Buchanan did not contact either Smith or D.E.'s primary care physician.
Buchanan explained that kinesiology testing is undertaken to determine a patient's muscle strength. Based on that testing, the provider establishes whether the patient needs nutritional supplements and, if so, the correct dosage. Buchanan testified that kinesiology testing has no basis in science.
D.E. reported that she was under a lot of stress as her husband had left her.
On cross-examination, Buchanan agreed that untreated or undertreated hypothyroid patients suffer from mental fog, poor memory and are often confused about relating facts. She did not test D.E.'s short-term or long-term memory. However, she did believe that D.E.'s symptoms reflected that her thyroid condition was not being properly treated. Buchanan reported that D.E. told her that Smith had sold her thyroid supplements. Because they made her sick, she stopped taking them. One of Buchanan's colleagues asked D.E. to produce the thyroid supplements but Buchanan did not know if D.E. had done so.
Smith raised a continuing objection to Buchanan's testimony on grounds of hearsay. The hearing examiner ruled that Buchanan's testimony would be allowed and reserved the issue of whether Buchanan's recital of D.E.'s statements to her were admissible as an exception to hearsay.
Michael E. Pliskin, D.D.S., Ph.D., testified as an expert in the practice of dentistry for the Bureau. He reviewed the patient records of D.E. and N.P. and the information provided by Buchanan.
Pliskin opined that kinesiology is a pseudo-science that assumes "every organ dysfunction, every nutritional imbalance, allergies have a corresponding specific muscle weakness." Reproduced Record at 205 (R.R. ___). He stated that it is "quackery" and "has no scientific foundation and has no even intellectual or logical or physiological or biological explanation." Id. Providing kinesiology to a patient would not conform to standards of acceptable and prevailing dental practice.
Pliskin was asked about Exhibit C-8, a computer printout from a Rite Aid pharmacy. Supplemental Reproduced Record at 74b-76b. According to the Rite Aid document, on January 17, 2006, March 20, 2006 and June 26, 2006, patient N.P. filled prescriptions for Nature-Throid, and Smith was listed as the prescribing doctor. Rite Aid had provided the prescription summary in response to a Bureau subpoena. Smith objected to the Rite Aid document on hearsay grounds. Again, the hearing examiner reserved a final ruling until after the hearing.
Pliskin noted that Smith's patient records did not show that he had prescribed the drug to N.P., and a dentist is required to record the name, quantity and strength of the medication, along with its directions for use, the date of issuance and the condition for which the medication was prescribed. Smith's records showed that he last saw N.P. on November 11, 2004, before the prescriptions were filled by Rite Aid. Pliskin opined that Nature-Throid is not used to treat any dental disease and cannot be prescribed by a dentist. Pliskin concluded that Smith acted outside of the dental standards by performing kinesiology testing on D.E. and by prescribing Nature-Throid to N.P.
On cross-examination, Pliskin admitted that nothing in the patient records of either D.E. or N.P. showed that Smith had practiced kinesiology. Pliskin assumed Smith had done so based on Buchanan's testimony. He also agreed that nothing in N.P.'s records established that Nature-Throid had been prescribed by Smith and that the actual prescription had not been produced, only a Rite Aid summary.
Smith then testified. He explained that he had been a dentist for approximately forty years. As to D.E., who is still his patient, he denied ever advising her against taking Synthroid or prescribing her a thyroid supplement. He admitted suggesting that she take a supplement called Thytrophin, but it does not require a prescription and does not have any effect on Synthroid. He explained that the supplement is a nutrient for muscle spasms. D.E. suffered temporomandibular joint and muscle disorder (TMJ), a type of muscle spasm.
Smith was asked about advising D.E. to use progesterone cream. He acknowledged making the recommendation because of her TMJ problems. He explained that the medical literature reported that female patients with malocclusions respond better with progesterone. A prescription is not needed for the cream.
Smith testified that he never did kinesiology testing on D.E. His treatment of D.E. consisted of using traditional dental orthopedics to align her teeth in order that "they mesh properly." R.R. 308. He agreed that the expansion of the teeth is a painful process, but the pain was a normal consequence of aligning teeth.
As to patient N.P., Smith testified that he treated him from 1992 through November 11, 2004. He has not spoken to or seen N.P. since 2004. He did not write any prescriptions for N.T. in 2006.
Smith explained that N.P. had been regularly prescribed Nature-Throid by his family physician. On one occasion, in 1994, N.P. asked him to write a prescription for Nature-Throid because he had run out of it. Smith tried to reach the family physician without success. Accordingly, he wrote N.P. a prescription on that single occasion, acknowledging that he had not noted the prescription in N.P.'s record. Smith explained that from a dental perspective, N.P.'s hypothyroidism needed to be regulated to avoid muscle spasm problems. Smith believed it was appropriate to write the prescription.
On cross-examination, Smith acknowledged that he had entered into a consent order and agreement with the Board on October 20, 2006. In that agreement, Smith admitted that on December 1, 2003, he used kinesiology testing on a patient, which departed from the acceptable standards of professional care. He consented to a 30-day license suspension.
Relying on D.E.'s statements to Buchanan, the hearing examiner found that Smith instructed D.E. to stop using Synthroid and replace it with Armour Thyroid approximately one year before D.E. saw Buchanan. The hearing examiner also found that Smith advised D.E. to use a progesterone cream and that Smith did kinesiology testing on D.E. Finally, the hearing examiner found that Smith prescribed Nature-Throid to N.P. in 1994 and 2006, which had not been recorded in the patient's records. The hearing examiner concluded that these actions violated the Dental Law and regulations. The hearing examiner recommended a 30-day license suspension and a civil penalty in the amount of $4,000.
In his recommended report, the hearing examiner resolved all of Smith's evidentiary objections in favor of the Bureau. The hearing examiner found Buchanan's testimony and notes of her conversation with D.E. admissible as a hearsay exception because the records were made for the purpose of medical diagnosis or treatment. The hearing examiner also found that D.E.'s statements to Buchanan about the progesterone cream were admissible because they were corroborated by Smith. Finally, the hearing examiner rejected Smith's hearsay objection to Exhibit C-8, the summary of the Rite Aid pharmacy records, holding that under the more liberal rules of evidence for administrative hearings the document was admissible. In any case, because Smith had admitted that he prescribed Nature-Throid to N.P., his hearsay objection was moot.
The Board adopted the findings of fact and conclusions of law of the hearing examiner, and it agreed with the hearing examiner's analysis of Smith's hearsay objections to the Bureau's evidence. The Board did not accept the hearing examiner's recommended sanction. The Board ordered a 90-day license suspension to be followed by a three-year period of probation and the successful completion of 20 hours of continuing education credits. It imposed a civil penalty of $4,000.
Smith petitioned for this Court's review and raises two issues. First, he argues D.E.'s statements to Buchanan are impermissible hearsay and not corroborated by any other evidence of record. Second, he argues that the Rite Aid summary offered to prove that he prescribed Nature-Throid to N.P. constitutes impermissible hearsay and is not corroborated by any other evidence of record. Accordingly, the Board's findings of fact are not supported by substantial evidence.
In reviewing an order of the Board, we are limited to determining whether the findings are supported by substantial evidence, whether constitutional rights were violated and whether an error of law was committed. Mostatab, D.M.D. v. State Board of Dentistry, 881 A.2d 1271, 1273 n.2 (Pa. Cmwlth. 2005).
We begin with a review of the law relevant to Smith's challenges to the Bureau's evidence. Administrative hearings are not bound by "technical rules of evidence." 2 Pa. C.S. §505. Hearsay evidence, properly objected to, is not competent evidence to support an agency's finding of fact. Chapman v. Unemployment Compensation Board of Review, 20 A.3d 603, 610 n.8 (Pa. Cmwlth. 2011). However, hearsay evidence will constitute substantial evidence where it is corroborated by other evidence of record, such as a party admission. Sule v. Philadelphia Parking Authority, 26 A.3d 1240, 1243 (Pa. Cmwlth. 2011).
It states, in relevant part, as follows:
Commonwealth agencies shall not be bound by technical rules of evidence at agency hearings, and all relevant evidence of reasonably probative value may be received.2 Pa. C.S. §505.
Smith contends that D.E.'s statements to Buchanan, as recounted and recorded by Buchanan, are hearsay and not admissible. The Board rejoins that D.E.'s statements were admissible under the medical treatment exception to the hearsay rule. PA. R.E. 803(4). The Board further argues that even if the medical treatment exception does not apply, the hearsay was corroborated by Smith's admissions.
Pennsylvania Rule of Evidence 803(4) provides a hearsay exception for the purposes of medical diagnosis or treatment, regardless of the availability of the declarant. It states as follows:
A statement made for purposes of medical treatment, or medical diagnosis in contemplation of treatment, and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof, insofar as reasonably pertinent to treatment, or diagnosis in contemplation of treatment.PA. R.E. 803(4). The comments to PA. R.E. 803(4) explain that "[s]tatements as to causation may be admissible, but statements as to fault or identification of the person inflicting harm have been held to be inadmissible." PA. R.E. 803(4) comment, citing Commonwealth v. Smith, 545 Pa. 487, 681 A.2d 1288 (1996). The Board distinguishes Smith by explaining that D.E.'s past treatment was directly relevant to her current course of treatment. Buchanan needed to know what treatment D.E. had received in the past to decide what, if any, new course of treatment to try and how to coordinate his ongoing treatment of D.E. with other professionals.
In Smith, the defendant was charged with aggravated assault after his daughter was scalded in the bathtub. At trial, a nurse testified that the victim identified the defendant as the one that turned on the water and placed her in the tub. The nurse's testimony was allowed under the medical treatment exception to hearsay, as set forth in PA. R.E. 803(4). On appeal, the defendant argued that the nurse's testimony constituted inadmissible hearsay. The Pennsylvania Supreme Court agreed and reversed the conviction.
The Supreme Court held that the medical treatment exception requires (1) that the statement be made for the purpose of receiving medical treatment and (2) that "the statement must be necessary and proper for diagnosis and treatment." Id. at 493, 681 A.2d at 1291. For example, a patient's report that he was hit by a car would be relevant for treatment, but adding that the car went through a red light would not. The Supreme Court concluded that the victim's statement about the identity of the person who placed her in the tub was not pertinent to medical treatment or diagnosis and, thus, did not meet the medical treatment exception. It reasoned that it made no difference to treatment whether the victim was burned by her father or a stranger. The Court rejected the Commonwealth's argument that the identity of the perpetrator as a family member was relevant to a child's need for ongoing psychological treatment and to protect her from further abuse. The Supreme Court held that to allow hearsay evidence on grounds that it related to the speaker's need for psychological treatment would render "the "pertinent to medical treatment" requirement meaningless as a standard for judicial analysis." Id. at 496, 681 A.2d at 1293.
See also Commonwealth v. Vining, 744 A.2d 310 (Pa. Super.), petition for allowance of appeal denied, 564 Pa. 709, 764 A.2d 1069 (2000) (holding child victim's statement about the identity of the person who scalded her to be inadmissible hearsay under PA. R.E. 803(4) because identity of perpetrator was not medically necessary information).
More recently in Commonwealth v. D.J.A., 800 A.2d 965 (Pa. Super. 2002), petition for allowance of appeal denied, 598 Pa. 786, 959 A.2d 928 (2004), the Superior Court considered a trial court's ruling to disallow a physician's testimony about what his patient, a child victim, told him. The child named the defendant as the perpetrator to the physician. On appeal, the prosecution argued that the medical treatment exception should apply because the identity of the perpetrator in a sexual abuse case relates to not just psychological issues but also to the danger of contracting sexually transmitted diseases. The Superior Court rejected this argument. It concluded that identifying the perpetrator did not establish whether the child should be tested or treated for a sexually transmitted disease. The child's statement to the physician was held not to meet the medical treatment exception.
With these principles in mind, we turn to the admissibility of D.E.'s statements made to Buchanan. The Board argues that Buchanan needed to know what prior treatment D.E. had received for her hypothyroidism. That may be, but the evidence shows that Buchanan treated D.E. and that she did so without ever contacting Smith. In some circumstances, the identity of another physician may be required to make a judgment about medical treatment, but the Bureau did not present such evidence here. Accordingly, the Board erred in admitting D.E.'s statements to Buchanan under the medical treatment exception.
The Board argues that, in any case, D.E.'s hearsay statements were corroborated by Smith's admissions. The Board found that Smith instructed D.E. to stop taking Synthroid; prescribed her Armour Thyroid; performed kinesiology testing on her; and directed her to use progesterone cream. Smith unequivocally denied all of these facts, with the exception of the progesterone cream.
Smith agreed that he suggested that D.E. use progesterone. He explained that D.E. was being treated for TMJ, and the medical literature reports there is a relationship between hormone imbalance and TMJ pain and recommends progesterone. The cream he recommended does not require a prescription.
The Bureau did not offer any evidence that Smith's recommendation was contraindicated or was a recommendation that could not be made by a dentist. The Bureau's expert did not address the issue at all. In its adjudication, the Board found, without explanation, that it was improper for Smith to recommend the use of an over-the-counter product to D.E. In the absence of any evidence relevant to the use of progesterone cream for women with TMJ, save the unrebutted testimony of Smith, there is no basis for the Board's conclusion that Smith's recommendation to D.E. violated the Dental Law.
In sum, there is no substantial evidence to support the findings of the Board that Smith advised D.E. not to take Snythroid; prescribed Armour Thyroid; and performed kinesiology testing on her. The record does support the Board's finding that Smith recommended progesterone cream, but there is no evidence to support a finding that this was an untoward recommendation. Accordingly, the Board's conclusions of law based on Smith's treatment of D.E. must be rejected.
We turn next to Smith's challenge to the Board's finding that he prescribed Nature-Throid to N.P. in 2006 and did not document the prescription in his medical records. The Board based this factual finding on a computer printout from Rite Aid, which lists Smith as the prescribing doctor from January 17, 2006, through June 26, 2006. After that date, the summary identifies the prescribing physician as Leander T. Ellis. Smith contends that the computer printout was hearsay and should not have been admitted.
The hearing examiner found that it was irrelevant whether the document was hearsay because Smith admitted to prescribing Nature-Throid to N.P. The hearing examiner also found the summary to be self-authenticating because it was received from Rite Aid in response to a subpoena. The Board agreed and noted, again, that hearsay is admissible at administrative hearings so long as it is corroborated. The Board held that Smith's admission that he prescribed Nature-Throid to N.P. in 1994 was such corroboration.
Smith does not argue that the computer printout was not generated by Rite Aid. Rather, he argues that the information contained within the document is not self-authenticating and is inadmissible, uncorroborated hearsay. Merely proving that the computer printout was compiled and sent by someone from Rite Aid does not, in and of itself, prove that the information provided on the printout is reliable or admissible as an exception to hearsay. For example, in United States v. Lauersen, 348 F.3d 329, 341-42 (2nd Cir. 2003), the court explained how documents received by subpoena should be admitted. First, the agent must testify to his receipt of the documents by a subpoena. Second, the proponent of the document must prove that the documents transmitted were admissible as business records. In Lauersen, this was proved through the testimony of a witness familiar with the record-keeping procedures of the business at issue. Id. at 342.
Smith argues that there is no competent evidence that he prescribed Nature-Throid to N.P. in 2006. His testimony, supported by his medical records, was that he last saw D.P. as a patient in 2004. His "admission" did not concern his action in 2006, for which he was charged, but, rather, his single prescription of the drug in 1994.
The Board's determination that the Rite Aid computer printout was corroborated by Smith mischaracterizes Smith's testimony. Smith's answer to the amended order to show cause stated that he did prescribe Nature-Throid to N.P., but it gave no time frame. Further, the answer specifically denied prescribing anything to N.P. in 2006. In his testimony, Smith admitted only to prescribing the medication in 1994. The Bureau does not assert that it can sanction Smith based on conduct that occurred in 1994.
In short, the only evidence to support the claim that Smith prescribed Nature-Throid in 2006 is the Rite Aid pharmacy computer printout. The Bureau is using the document to prove that Smith prescribed Nature-Throid to N.P., i.e., to prove the truth of the matter asserted in the summary. In the absence of corroboration, the summary could be admissible only as an exception to hearsay.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted therein. First Ward Republican Club of Philadelphia v. Liquor Control Board, 11 A.3d 38, 44 (Pa. Cmwlth. 2010).
At trial, the Bureau claimed that the document was an exception to hearsay because "these pharmacy records speak for themselves." R.R. 214. Unfortunately for the Bureau, the document does not speak for itself. As noted by Smith, the Bureau did not lay a foundation for the document to show how and when it was created. It is not known whether the Rite Aid computer printout was derived from an actual prescription or some other source.
The admission of a business record requires testimony that it was kept in the course of a regularly conducted business activity. See PA. R.E. 803(6). Business records may be self-authenticating, where they contain a certification from the custodian. Id. Here, the computer printout actually provided a place for the pharmacist to sign, certifying that the medications were dispensed by order of the physicians contained therein. However, it was not signed. The Bureau simply failed to present a foundation for admitting the Rite Aid summary as a business record. Accordingly, the Board's finding that Smith prescribed N.P. Nature-Throid in 2006 is not supported by substantial evidence, or any admissible evidence.
It states, in relevant part, as follows:
A memorandum, report, record, or data compilation, in any form, of acts, events, or conditions, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.PA. R.E. 803(6). --------
For these reasons, we reverse the Board.
/s/_________
MARY HANNAH LEAVITT, Judge Judge Leadbetter dissents. ORDER
AND NOW, this 13th day of July, 2012, the order of the Pennsylvania State Board of Dentistry dated June 14, 2011, in the above-captioned matter is hereby REVERSED.
/s/_________
MARY HANNAH LEAVITT, Judge