Colorado State Board of Dental Examiners v. Norton , 9 P.3d 1182 ( 2000 )

Opinion by

Judge RULAND.

Respondent, Dr. Neil George Norton, appeals from an order of the State Board of Dental Examiners directing that a letter of admonition be issued to him. The letter admonishes respondent for violating § 12-85-118(1)(h) and § 12-85-118(1)(f), CRS. 1999, of the Dental Practice Act. We affirm in part, vacate in part, and remand with directions.

Respondent is licensed to practice dentistry in Colorado. After performing an initial examination on a patient, respondent determined that the patient needed extensive dental work. Respondent intended to propose a treatment plan at the patient's next scheduled visit, but the patient failed to appear for that appointment.

Three months later, the patient returned to respondent's office complaining to a staff member of sensitivity to hot and cold. She asked that respondent fill as many of her cavities as he could that day. Respondent then met with the patient and proposed his treatment plan.

He advised the patient that placing crowns on certain teeth took priority over filling the cavities. The patient refused the crowns and insisted that the cavities be filled. Respondent answered that not placing the crowns first would be malpractice. The patient became verbally abusive and left the office.

Later, the patient filed a complaint with the Board, and a letter of admonition was issued to respondent alleging that his treatment of the patient was substandard. Respondent appealed from the decision to issue the letter pursuant to § 12-85-118(1), C.R.S. 1999.

A hearing was held before an Administrative Law Judge (ALJ). At the close of evidence, the ALJ granted the attorney general's motion to amend the notice of charges over respondent's objection to include a claim alleging that respondent's treatment plan sequence was substandard. No request for a continuance was made by respondent. Later, based upon extensive findings of fact, the ALJ concluded that respondent's treatment plan sequence was indeed substandard and thus violated § 12-85-118(1)(J).

Both parties later filed exceptions with the Board. The Board adopted the ALJ's findings and then approved the issuance of a letter of admonition. This appeal followed pursuant to § 12-85-115, C.R.S8.1999.

L.

Initially respondent contends, and the Board agrees, that the reference in the letter of admonition to a violation of § 12-85-118(1)(h) was error. We also agree. Therefore, the case must be remanded for revision of the letter to delete the error.

IL.

Respondent next contends that the Board erred for various reasons in affirming the ALJ's determination that respondent's treatment plan sequence fell below generally accepted dental practice standards. We are not persuaded by any of respondent's contentions.

A.

Respondent first argues that the ALJ erred by granting the attorney general's motion to amend the notice of charges to add this claim. Even if we assume that this issue was properly preserved by respondent for judicial review, we conclude that there was no reversible error.

Section 24-4-105(4), C.R.9.1999, grants the ALJ authority to "dispose of motions to amend ... pleadings ... or take any other action authorized by ... the procedure in the district court." The motion to amend was thus made pursuant to C.R.GC.P. 15(b). As pertinent here, the rule authorizes a party to amend the pleadings to conform to the evidence if a claim has been tried by implied consent.

Contrary to respondent's assertions, the ALJ has discretion to determine whether to grant the motion. And, the fact that a license to practice is involved does not change the standard of review for the ALJ's decision. Indeed, in a criminal case, an uncharged lesser non-included offense may be submitted to the jury if the charging document provides sufficient notice to the defendant that he or she may have to defend against the charge. People v. Garcia, 940 P.2d 357 (Colo.1997).

Accordingly, in our view the ALJ's decision must be approved if there is no reasonable doubt that the issue was intentionally and actually tried. See Lyons v. Teamsters Local Union No. 961, 903 P.2d 1214 (Colo.App.1995).

Here, the notice of charges included allegations that:

4, SR. [the patient] had active caries with large lesions in teeth #'s 2 and 21.

5. Respondent recommended to S.R. that she have teeth #'s 4 and 19 crowned before treating the active caries on teeth #'s 2 and 21.

6. SR. was experiencing pain in teeth #'s 2 and 21, and did not request nor desire crown placements in #'s 4 and 19 at that time.

7. Respondent refused to restore teeth #'s 2 and 21 without prior crown placement of #'s 4 and 19.

8. ... S.R. sought a second opinion from . [another dentist].

9. [That dentist] ... opined that proper treatment planning involved removal of active caries on teeth #'s 2 and 21 prior to any other treatment. ... (emphasis supplied)

And, in a written opinion prepared in advance of the hearing and introduced into evidence, respondent's expert stated that: "The issue here is the sequence of treatment and not the specific recommended treatment."

Finally, during the hearing, experts for both parties offered extensive testimony, albeit conflicting, regarding whether respondent's opinion as to the priority of treatment was substandard. However, there was no objection to this testimony as not relevant to the written charges.

Thus, we conclude that respondent had sufficient notice that treatment sequencing would be an issue at the hearing. We further conclude that the issue was intentionally and actually tried. See Colorado State Board of Dental Examiners v. Micheli, 928 P.2d 889 (Colo.App.1996)(due process in an administrative hearing requires that respondent have an opportunity to be heard following adequate notice of the nature of the proceedings); see also People v. Garcia, supra.

Accordingly, because the record supports the ALJ's decision, it may not be disturbed on appeal.

B.

Respondent next contends that the ALJ's evidentiary findings do not support the Board's conclusion that the treatment sequence fell below generally accepted dental standards. Again, we disagree.

Evidentiary findings of an administrative ageney may be set aside only if those findings are clearly erroneous or are unsupported by substantial evidence when the record is considered in its entirety. Ultimate findings of fact, if supported by substantial evidence, may be set aside if there is no reasonable basis in law for those findings. Lee v. State Board of Dental Examiners, 654 P.2d 889 (Colo.1982).

First, we are not persuaded by respondent's contention that the ALJ's eviden-tiary findings, as adopted by the Board, are in conflict and thus do not support the Board's order. While the ALJ found that respondent's intended treatment plan was within acceptable dental standards, the ALJ also in effect found that after the patient refused the crowns, respondent's initial refusal to then fill the cavities constituted substandard treatment. Hence, in our view these findings are not fatally inconsistent.

Next, to the extent respondent suggests that the Board may not determine the applicable standard of care if the expert testimony is in conflict, we conclude that State Board of Medical Examiners v. McCroskey, 880 P.2d 1188 (Colo.1994), establishes otherwise.

C.

Finally, the Board's determination that respondent's treatment sequence fell below generally accepted dental standards is supported by substantial expert testimony in the record. In this context, we must defer to the weight and credibility determinations of the Board. See State Board of Medical Examiners v. Thompson, 944 P.2d 547 (Colo.App.1996).

We have considered and reject respondent's remaining contentions for reversal of the Board's order.

That part of the Board's order directing issuance of a letter of admonition for violation of § 12-85-118(1)(}) is affirmed. That part of the Board's order directing issuance of a letter of admonition for violation of § 12-35-118(1)(h) is vacated, and the cause is remanded with directions to the Board to modify the letter to remove any reference to a violation of § 12-85-118(1)(h).

Judge NIETO concurs. Judge METZGER dissents.