Shah v. Az Brd Dental Exam ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
NISHITH S. SHAH, Plaintiff/Appellant,
v.
ARIZONA STATE BOARD OF DENTAL EXAMINERS,
Defendant/Appellee.
No. 1 CA-CV 13-0488
FILED 11-04-2014
Appeal from the Superior Court in Maricopa County
No. LC2011-000735-001
The Honorable Crane McClennen, Judge
AFFIRMED
COUNSEL
Smith Law Group, Tucson
By Christopher J. Smith, E. Hardy Smith, Kathleen Leary
Counsel for Plaintiff/Appellant
Arizona Attorney General’s Office, Phoenix
By Michael Raine
Counsel for Defendant/Appellee
SHAH v. AZ BRD DENTAL EXAM
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MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Michael J. Brown joined.
J O N E S, Judge:
¶1 Nishith S. Shah, a licensed dentist, appeals the trial court’s
judgment affirming the decision of the Arizona Board of Dental
Examiners (the Board) finding Shah engaged in unprofessional conduct
and ordering him to complete sixteen hours of continuing education.
Shah argues the Board’s administrative proceedings denied him due
process and challenges the Board’s factual findings. Shah also contends
the imposed penalty was excessive. For the following reasons, we affirm.
FACTS & PROCEDURAL HISTORY
¶2 On November 17, 2010, Shah was performing oral surgery in
his office on sixty-eight-year-old C.N. During the surgery, and while C.N.
was under intravenous sedation, his blood oxygen saturation level
suddenly dropped, and he went into asystole.1 Shah and his surgical
team commenced resuscitation measures, including three attempts to get
“a shockable rhythm,” but C.N. did not recover. Paramedics promptly
transported C.N. to the hospital, where he was pronounced dead.
¶3 Through counsel, Shah self-reported the incident to the
Board on November 29, 2010, and provided copies of C.N.’s surgical
records. Those records, made contemporaneously with the surgery,
consisted of three form “anesthesia sheets” containing handwritten
“opnote[s]” and other notations regarding C.N.’s vital signs in ten-minute
increments. The Board initiated a complaint and investigation based upon
the reported incident, which contained two allegations: “Failure to report
adverse occ[urrence]” and “Adverse Occurrence/Sedation.”
¶4 The Board notified Shah that a Board-appointed panel
(Panel) sought an informal interview (Panel Interview) for the purpose of
investigating and determining the validity of the allegations. The Board’s
1 Asystole means “cardiac standstill or arrest—absence of a heartbeat.”
Dorland’s Illustrated Medical Dictionary 159 (25th ed. 1974).
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notice (Notice) informed Shah that the allegations, “if proven true, could
constitute Unprofessional Conduct” under Arizona Revised Statutes
(A.R.S.) section 32-1201(21)(n)2 (defining “unprofessional conduct” as
“[a]ny conduct or practice that constitutes a danger to the health, welfare
or safety of the patient or public”), and listed the range of possible
disciplinary and non-disciplinary measures. The Notice further advised
Shah he would have the opportunity, at the Panel Interview, to present
witnesses and evidence relating to the allegations, and that he was entitled
to request from the Board factual information it would use in making its
determination. Finally, the Notice informed Shah he had the legal right to
refuse to cooperate with the Board in the informal interview process, in
which case the matter would proceed to a formal hearing. See A.R.S. § 32-
1263.02(C) (2008).3
¶5 Shah did not request a formal hearing; instead, he submitted
a nine-page written response to the allegations and elected to proceed
with the informal process. Shah then requested and obtained a
continuance of the Panel Interview due to a conflict with his attorney’s
schedule. He later submitted a second request for a continuance, again
based upon his counsel’s unavailability, which the Board denied. Shah
then appeared at the Panel Interview with a different attorney from the
same firm. He testified, but did not present any other witnesses or
evidence.
¶6 Following the interview, the Panel issued a report
summarizing its factual findings and recommendations to the Board. The
Panel recommended the Board dismiss the allegation of failure to report
an adverse occurrence, apparently accepting Shah’s explanation that the
calculation of the ten-day period to report was extended by the
Thanksgiving holiday, as the Board office was closed. Regarding the
allegation of adverse occurrence/sedation, the Panel (1) identified
deficiencies in Shah’s record-keeping during C.N.’s surgery, (2) found
2 Although the legislature amended the statute in 2011, the amendment
does not relate to the issues presented in this case. See 2011 Ariz. Sess.
Laws, ch. 267, § 1 (1st Reg. Sess.). We therefore cite the current version, as
we do all statutes that have remained materially unchanged.
3 Because the statute was materially revised in 2011, we cite the version in
effect at the time the Notice was sent and the Panel Interview occurred.
See 2011 Ariz. Sess. Laws, ch. 175, §§ 1-2 (1st Reg. Sess.) (effective July 20,
2011).
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Shah was not aware of a Federal Drug Administration (FDA) black box
warning4 relating to a drug Shah administered to C.N. during the
procedure, and (3) concluded Shah failed to follow pharmacologic
protocol when C.N. went into asystole. The Panel recommended the
Board conclude these facts amounted to unprofessional conduct, but
acknowledged they were not likely causally related to C.N.’s death. The
Panel therefore recommended discipline in the form of twelve and sixteen
hours, respectively, of continuing education in the areas of Advanced
Cardiac Life Support (ACLS) and pharmacology agents used in general
anesthesia.
¶7 By letter to the Board, Shah objected to the Panel’s report
and requested his case be dismissed or, alternatively, the Board issue a
non-disciplinary letter of concern. In response, the Panel investigator
clarified several points, but affirmed its recommended findings to the
Board.
¶8 Shah appeared at a meeting of the Board, to challenge the
Panel’s recommended findings and disposition. After hearing Shah’s
arguments and reviewing the investigative report, the Board voted to
accept the Panel’s factual findings with minor clarifications,5 adopted the
conclusion of unprofessional conduct, and ordered sixteen hours of
continuing education in the area of pharmacology agents used in general
anesthesia.
¶9 The Board denied Shah’s request for a rehearing, and he
appealed to the trial court pursuant to the Administrative Review Act. See
A.R.S. §§ 12-901 to -914. The court affirmed the Board’s decision, and
Shah timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-913
and -2101(A)(1).
4As explained at the Panel Interview, a black box warning is “the FDA’s
most serious warning about potential side effects.”
5 In adopting the Panel’s findings, the Board expounded upon the Panel’s
general observation that Shah inadequately documented the procedure by
stating Shah’s records for C.N. did not include EKG “strips,” and
contained “discrepancies in the pre and post EKG documentation,” as
well as “in the medication times and amounts.”
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DISCUSSION
I. Standard of Review
¶10 In reviewing an administrative agency’s decision, the trial
court “shall affirm the agency action unless after reviewing the
administrative record and supplementing evidence presented at the
evidentiary hearing the court concludes that the action is not supported
by substantial evidence, is contrary to law, is arbitrary and capricious or is
an abuse of discretion.” A.R.S. § 12-910(E). Arbitrary and capricious
agency action has been described as “‘unreason[ed] action, without
consideration and in disregard for facts and circumstances.’” Petras v.
Ariz. State Liquor Bd., 129 Ariz. 449, 452, 631 P.2d 1107, 1110 (App. 1981)
(quoting Tucson Pub. Sch., Dist. No. 1 of Pima Cnty. v. Green, 17 Ariz. App.
91, 94, 495 P.2d 861, 864 (1972)). “The court must defer to the agency’s
factual findings and affirm them if supported by substantial evidence.”
Gaveck v. Ariz. State Bd. of Podiatry Exam’rs, 222 Ariz. 433, 436, ¶ 11, 215
P.3d 1114, 1117 (App. 2009) (citations omitted). “If an agency’s decision is
supported by the record, substantial evidence exists to support the
decision even if the record also supports a different conclusion.” Id.(citing DeGroot v. Ariz. Racing Comm’n, 141 Ariz. 331, 336, 686 P.2d 1301,
1306 (App. 1984)).
¶11 When we review the trial court’s ruling affirming an
administrative decision, we engage in the same process, “independently
examin[ing] the record to determine whether the evidence supports the
judgment.” Webb v. State ex rel. Ariz. Bd. of Med. Exam’rs, 202 Ariz. 555,
557, ¶ 7, 48 P.3d 505, 507 (App. 2002) (citing Carley v. Ariz. Bd. of Regents,
153 Ariz. 461, 463, 737 P.2d 1099, 1101 (App. 1987)). As a result, “we reach
the underlying issue of whether the administrative action was illegal,
arbitrary, capricious or involved an abuse of discretion.” See Havasu
Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods., Inc., 167 Ariz. 383,
386, 807 P.2d 1119, 1122 (App. 1990).
¶12 Whether substantial evidence exists is a question of law for
our independent determination. See id. at 387, 807 P.2d at 1123.
However, we view the evidence in the light most favorable to upholding
an administrative decision. Special Fund Div. v. Indus. Comm'n, 182 Ariz.
341, 346, 897 P.2d 643, 648 (App. 1994). Additionally, we review
constitutional issues, including an alleged violation of due process, de
novo. See Carlson v. Ariz. State Pers. Bd., 214 Ariz. 426, 430, ¶¶ 12-13, 153
P.3d 1055, 1059 (App. 2007).
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II. Due Process: Notice & Opportunity to be Heard
¶13 Shah first argues the Panel Interview violated his procedural
due process rights because the Board failed to give him “any explanation
of the investigation the . . . [P]anel would be conducting, the allegations
against him, or the standard of care to be applied in the Panel’s
assessment or in the Board’s decision regarding discipline.”6 While
neither party addressed the substance of Comeau v. Arizona State Board of
Dental Examiners, 196 Ariz. 102, 993 P.2d 1066 (App. 1999), we find the
case and its analysis controlling here, and hold that the investigative
interview in this case satisfied the requirements of procedural due
process.
¶14 It is true that Shah has a protected interest in his dental
license, and he may not be deprived of that interest without due process
of law. Id. at 106, ¶ 18, 993 P.2d at 1070. “When a professional license is at
stake, ‘the State’s interest must justify the degree of infringement which
ensues from the sanction, and appropriate procedures must be used to
guard against arbitrary action.’“ Id. at ¶ 19 (quoting Schillerstrom v. State,
180 Ariz. 468, 471, 885 P.2d 156, 159 (App. 1994)). But “‘the right to pursue
[his] profession is subject to the paramount right of the state under its
police powers to regulate business and professions in order to protect the
public health, morals and welfare.’” Id. (quoting Cohen v. State, 121 Ariz.
6, 10, 588 P.2d 299, 303 (1978)).
¶15 Procedural due process ensures that a party receives
adequate notice and opportunity to be heard at a meaningful time in a
meaningful way by an impartial judge. Mathews v. Eldridge, 424 U.S. 319,
333 (1976); Hall v. Lalli, 194 Ariz. 54, 57, ¶ 6, 977 P.2d 776, 779 (1999);
Comeau, 196 Ariz. at 106-07, ¶ 20, 993 P.2d at 1070-71. Due process is not,
however, a static concept; rather “[t]he requirements of due process vary
with the nature of the proceedings, the private and governmental interests
6 The Board argues Shah waived this due process objection on appeal by
not raising it at any stage prior to filing his reply brief during the trial
court’s judicial review. “[T]he waiver rule is procedural rather than
jurisdictional, [and] we may forego application of the rule in our
discretion.” Liristis v. Am. Family Mut. Ins. Co., 204 Ariz. 140, 143, ¶ 11, 61
P.3d 22, 25 (App. 2002) (internal citation omitted). Because the parties
have fully briefed the issue and we consider constitutional issues to be of
considerable import, in the interest of justice, we choose to address the
substance of Shah’s claim.
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at stake, and the risk that the procedure will lead to erroneous results.”
Berenter v. Gallinger, 173 Ariz. 75, 82, 839 P.2d 1120, 1127 (App. 1992)
(citing Maricopa Cnty. Juvenile Action JD-561, 131 Ariz. 25, 27, 638 P.2d 692,
694 (1981)); see also Carlson, 214 Ariz. at 430–31, ¶ 15, 153 P.3d at 1059–60
(noting the flexible nature of due process does not require elaborate
administrative hearings as long as there is notice and opportunity to be
heard). Thus, the amount of process Shah was due during the Board’s
administrative proceeding is determined by the extent to which the
continuing education order deprives him of his protected interest in his
dentist license.
¶16 The Board has wide latitude to take one or more disciplinary
actions against a licensee. See A.R.S. § 32-1263.01(A). Where certain forms
of discipline that clearly deprive a licensee of his right to practice his
profession — for example, license revocation or suspension — are
implicated, a formal hearing must be initiated. See A.R.S. § 32-1263.02
(D)(1) (2008). Alternatively, the law provides for an informal investigative
interview, if the Board deems the process appropriate and the licensee
agrees to participate. A.R.S. § 32-1263.02(C) (2008). During the informal
interview, the level of process due the licensee is commensurate to the
seriousness of the penalty sought to be imposed. See, e.g., Gaveck, 222
Ariz. at 437-38, ¶¶ 14-21, 215 P.3d at 1118-19 (App. 2009) (finding
insufficient notice regarding applicable standard of care where licensee
faced censure); Webb, 202 Ariz. at 558-60, ¶¶ 8-17, 48 P.3d at 508-10(finding same where probation imposed upon licensee); Murphy v. Bd. of
Med. Exam’rs, 190 Ariz. 441, 448-49, 949 P.2d 530, 537-38 (App. 1997)
(finding minimal process due to licensee in issuing a letter of concern that
does not, as a matter of law, deprive licensee of rights or privileges).7
¶17 Here, as in Comeau, the Board decided the informal process
was appropriate, and Shah “cooperated in that process until it produced a
result he did not like. He then began to argue that he had been denied
7 Shah relies heavily on Gaveck and Webb for his argument that he was
entitled to an enhanced level of due process. However, those cases are
distinguishable as they dealt with more serious forms of disciplinary
action: public censure and probation. Gaveck, 222 Ariz. at 436, ¶ 9, 215
P.3d at 1117; Webb, 202 Ariz. at 556, ¶ 1, 48 P.3d at 506. Thus, neither Webb
nor Gaveck is controlling, or may be relied upon to establish the amount of
process due before the Board could order Shah to complete a limited
number of continuing education credits.
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procedural due process . . . ,” 196 Ariz. at 107, ¶ 22, 993 P.2d at 1071,
because he did not receive those enhanced procedures that attach only
where serious disciplinary action is anticipated, or where the licensee
invokes the formal process. And, as did the court in Comeau, we reject this
argument. The statutory scheme “creates the investigative interview as an
alternative to a formal hearing, if both the Board and the licensee agree. A
licensee in [Shah’s] situation can have either an investigative interview or
formal hearing, but he cannot have one and then, if displeased with the
result, have the other, too.” Id. (citing A.R.S. § 32-1263.02(C), (D)(1)
(2008)). Similarly, Shah cannot elect to proceed with the informal process
and then argue a denial of the procedural due process rights that would
have accompanied the formal process.
¶18 Here, Shah was provided the option to pursue the matter in
a formal hearing. Assisted by counsel, Shah chose to participate in the
informal Panel Interview. Shah elected not to present additional
witnesses or other evidence at the informal hearing, although he had a
right to do so. Thereafter, the Board ordered Shaw to complete sixteen
hours of continuing education to address deficiencies identified within his
record-keeping and pharmacological practice. An order requiring a
licensee to complete a prescribed number of hours of continuing
education can be considered either disciplinary or non-disciplinary.
A.R.S. § 32-1263.01(A)(8), (B). Nonetheless, it is inarguably one of the least
severe forms of discipline available to the Board to address ascertained
deficiencies in a licensee’s dental practice. See generally A.R.S. § 32-
1263.01(A). Shah fails to identify, and we are unable to discern, any legal
right or privilege affected by the Board’s requirement he attend
continuing education. To the contrary, participation in continuing
education creates no obvious impediment to, and arguably improves, the
quality of his dentistry practice.
¶19 Because the imposition of continuing education does not
deprive Shah of any legal rights or privileges, we conclude he was entitled
only to minimal due process. See Murphy, 190 Ariz. at 449, 949 P.2d at 538.
¶20 Shah alleges he received insufficient notice of the charges.
The notice required to satisfy due process must be reasonably calculated
to apprise the licensee of the pendency of an action and afford him a
meaningful opportunity for explanation and defense. Comeau, 196 Ariz. at
108, ¶ 28, 993 P.2d at 1072. As applied to a medical licensee, due process
requires “notice of the nature of the wrong charged and the particular
instances of its perpetration.” Id. at ¶¶ 28-29 (citing Med. Licensing Bd. v.
Ward, 449 N.E.2d 1129, 1145 (Ind. Ct. App. 1983), and ultimately holding
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notice of charges sufficient where dental licensee had notice of Board’s
allegations, was aware of contents of complaint, and knew what records
the Board had because he had provided them).
¶21 The record reflects Shah had notice of the general allegations
regarding the purported professional misconduct — namely, failure to
timely report, and adverse occurrence during sedation. Shah was aware
of the contents of the complaint, as he self-reported the incident. And,
because he provided a copy of C.N.’s records to the Panel in advance of
the Panel Interview, he “therefore knew what records the [P]anel and the
Board had, and he had those records himself.” Comeau, 196 Ariz. at 108, ¶
29, 993 P.2d at 1072. Accordingly, we are not persuaded Shah was
unaware of the general topics — in particular, the details of his own
record-keeping, his familiarity with drugs administered to C.N.,8 and
general pharmacological protocol in the event of an adverse cardiac event9
8 Shaw argues the Board improperly failed to notify him that knowledge
of the Droperidol black box warning would “be a standard of care
requirement.” We disagree that the Board is obligated to articulate such a
basic requirement as reading warning labels on drugs prior to
administering them to patients. Furthermore, Shah fails to establish how
this alleged lack of notice prejudiced him. Shah admits he was unaware of
the warning located within the box from which he removed the drug he
then administered to C.N. Given that admission, Shah cannot credibly
assert he was surprised by the conclusion of the Panel. No error by the
Board, reversible or otherwise, occurred. See Cnty. of La Paz v. Yakima
Compost Co., 224 Ariz. 590, 598, ¶ 12, 233 P.3d 1169, 1177 (App. 2010)
(assuming a deprivation of due process but refusing to find reversible
error when appellant failed to demonstrate resulting unreasonable
prejudice).
9 Shah also asserts due process required specific notice that he would be
questioned regarding appropriate clinical intervention for treatment of
cardiac emergencies or that the Board would apply ACLS protocol “as the
standard of care without regard to actual events occurring in a medical
emergency.” We disagree. Again, the record reflects Shah admitted
knowledge of what the ACLS protocol required and further explained to
the Panel his reasons for deviating from it. Having made this admission,
Shah does not explain how a lack of specific notice that the established
and recognized protocol would be used by the Board to evaluate the
propriety of his conduct prejudiced him or would have changed his
testimony or the fact that he did not follow that protocol. Consequently,
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— that would be discussed at the informal interview based upon his self-
reporting of a patient death that occurred under anesthesia. We do not
understand that, under the “‘practicalities and peculiarities of the case’” at
hand, id. at 107, ¶ 20, 993 P.2d at 1071 (quoting Mullane v. Cent. Hanover
Bank & Trust Co., 339 U.S. 306, 314 (1950)), the Board was obligated to
provide Shah a script of proposed interview questions or spell out, in
advance, his professional obligation to keep accurate timely records, read
the warning labels on drugs administered, or follow established protocols
when administering life-saving treatment during a cardiac event. The
notice of the charges was sufficient.
¶22 The record also supports that Shah received an adequate
opportunity to be meaningfully heard on the issues. See id. at ¶ 23
(finding due process satisfied during investigative interview where
licensee did not face serious discipline, was represented by counsel, had
sufficient notice of charges, and was provided the opportunity to testify
and cross-examine witnesses). Shah chose to proceed to the informal
Investigative Panel, had the right to be represented, and was represented
by competent counsel at all times. Further, he had sufficient notice of the
charges, the opportunity to request additional information and the
evidence to prepare an explanation and present a defense. Although he
elected not to do so, Shah was also advised of his right to present
witnesses and evidence at the Investigative Panel. He presented his “side
of the story” through his written response to the allegations of
unprofessional conduct and participation in the Panel Interview. He did
not object to the informal proceedings at that time and made no credible
argument that other relevant evidence should have been presented, or
would have been presented had the notice been more detailed or had he
requested and participated in the formal hearing.10 We therefore hold the
pursuant to Yakima Compost Co., 224 Ariz. at 598, ¶ 12, 233 P.3d at 1177, we
find no due process violation, reversible or otherwise.
10 Notably, as discussed at length in Part IV, supra, the findings ultimately
adopted by the Board were based upon Shah’s own factual admissions.
Although Shah argued to the Board, after the Panel Interview concluded
and the Investigative Report issued, that his staff should have been
permitted to testify to the Board, we find nothing in the anticipated
testimony that could or would counter Shah’s testimony that he did not
read the black box warning on the Droperidol, did not fully document
C.N.’s cardiac status, and did not follow the pharmacological protocol
when C.N. went into asystole. We further note Shah had opportunity to
present witnesses and evidence at the Panel Interview. He did not do so,
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investigative interview in this case satisfied the requirements of
procedural due process.
III. Purported “Irregularities” in the Administrative Proceedings11
¶23 Shah identifies what he perceives to be “irregularities” with
the administrative proceedings he contends deprived him of due process.
First, Shah argues the Board’s denial of his second request to continue the
Panel Interview denied him due process because a particular lawyer was
unavailable to represent him at the proceedings. We reject this argument.
¶24 Shah points to no authority, and we are aware of none, to
support his position. Generally, mere dissatisfaction with counsel is
insufficient to warrant reconsideration of issues already adjudicated. See
King v. Superior Court, 138 Ariz. 147, 151, 673 P.2d 787, 791 (1983).
¶25 Moreover, the record reflects another attorney from the same
firm represented Shah at the interview, whom Shah concedes was “highly
competent.” Therefore, at a minimum, Shah fails to establish any
resulting prejudice from the circumstance that would support a finding of
reversible error. See, e.g., Yakima Compost Co., 224 Ariz. at 598, ¶ 12, 233
P.3d at 1177 (“Even assuming [appellant] was deprived of [his] due
process right to notice and an adequate opportunity to present [his]
claims, . . . because [he] fails to demonstrate how [he] was unreasonably
prejudiced by the deprivation, we do not find reversible error.”) (citations
omitted).
¶26 Additionally, we find no merit in Shah’s contention, without
any supporting authority, that the denial of his second request for a
continuance constituted an abuse of discretion. To the contrary, the Board
noted its obligation to the public to timely resolve the investigation, and
further indicated the oral surgeon who would be advising the Panel in the
interview had already been rescheduled once for Shah’s convenience and
would be advising the Panel on another matter on the rescheduled date.
and cannot now complain that his own belated attempt to introduce
evidence at a non-evidentiary proceeding after the investigation was
completed was a deprivation of rights caused by the Board.
11 Shah incorrectly asserts the Board is no longer authorized to conduct
investigative interviews. See A.R.S. § 32-1263.02(B) (“The board or its
designees shall conduct necessary investigations, including interviews
between representatives of the board and the licensee . . . .”).
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See State ex rel. Corbin v. Tocco, 173 Ariz. 587, 595, 845 P.2d 513, 521 (App.
1992) (finding no abuse of discretion where adequate explanation existed
in the record to support the trial court’s decision). Again, we find no
reversible error occurred in denying Shah’s second request to postpone
the Panel Interview.
¶27 Shah next argues the Panel Interview was conducted
unfairly because it was “unnecessarily adversarial.” Specifically, he
contends the oral surgeon who advised the Panel at the interview made
sarcastic comments regarding Shah’s surgery records and improperly
implied Shah should have been able to recite verbatim the administrative
rule he was alleged to have violated. This argument is unavailing.
¶28 Even assuming arguendo that the comments were less than
professional, nothing in the record suggests the oral surgeon was biased,
had a conflict of interest, or otherwise exhibited “behavior . . . ‘so extreme
as to display clear inability to render fair judgment.’” Rollins v. Massanari,
261 F.3d 853, 858 (9th Cir. 2001) (quoting Liteky v. United States, 510 U.S.
540, 551 (1994)). Indeed, “expressions of impatience, dissatisfaction,
annoyance, and even anger, that are within the bounds of what imperfect
men and women . . . sometimes display,” even if inappropriate or
unprofessional, do not in and of themselves establish bias. Liteky, 510 U.S.
at 555–56; cf. United States v. Poland, 659 F.2d 884, 894 (9th Cir. 1981)
(finding no prejudice in trial judge's displays of irritation and impatience
with defense counsel and use of sarcasm where evidence of defendant’s
guilt was overwhelming).
¶29 In fact, the Panel’s report reflects exceeding care was given
not to overstate the role of Shah’s deficiencies and discrepancies in C.N.’s
death. Specifically, the report states: “[the oral surgeon] and other panel
doctors don’t want to overreact and censure over something that would
have had the same outcome no matter what Dr. Shah did.” The oral
surgeon further stated he “d[id] not want to infer” that anesthetic
medications administered by Shaw “had any impact on the death of this
patient . . . . It probably had nothing to do with the patient’s death.”
¶30 Furthermore, the Panel — and subsequently the Board —
collectively decided that ordering continuing education was proper in this
case, thereby effectively negating any alleged impropriety resulting from
the purported sarcasm Shah argues was displayed at the interview.
Accordingly, Shah has not satisfied his burden of establishing unfairness
on this basis. See Emmett McLoughlin Realty, Inc. v. Pima Cnty., 212 Ariz.
351, 357, ¶ 24, 132 P.3d 290, 296 (App. 2006) (“All decision makers, judges
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and administrative tribunals alike, are entitled to a presumption of
‘honesty and integrity,’” and the party asserting bias bears the burden of
rebutting the presumption of fairness) (citing Pavlik v. Chinle Unified Sch.
Dist. No. 24, 195 Ariz. 148, 154, ¶ 24, 985 P.2d 633, 639 (App. 1999)). Again,
as this Court noted in Comeau, “[w]hat the record reflects is a
conscientious effort by the [consultant] to do what he was appointed to do
in service to his profession.” 196 Ariz. at 108, ¶ 27, 993 P.2d at 1072.
IV. Factual Findings
A. EKG Reports and Documentation
¶31 Shah next challenges the sufficiency of the Board’s findings,
first protesting the Board’s finding that his records pertaining to C.N.’s
surgery failed to include EKG strips and contained discrepancies in “pre
and post EKG documentation.”
¶32 The Board found Shah violated Arizona Administrative
Code (A.A.C.) R4-11-1301(D), which requires a dentist to:
[K]eep an anesthesia record for each general anesthesia and
semi-conscious sedation administered that . . . [i]ncludes the
following entries:
a. Pre-operative and post-operative electro-
cardiograph reports;
b. Pre-operative, post-operative, and intra-
operative pulse oximeter readings;
c. Pre-operative and post-operative blood
pressure and vital signs;
d. Intra-operative blood pressures; and
e. A list of all medications given, with dosage
and time intervals.
A.A.C. R4-11-1301(D)(1) (2003).12
12This rule was materially revised and renumbered in 2013. See 19 A.A.R.
341, 350-51 (effective April 6, 2013).
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Decision of the Court
¶33 Shah concedes his records do not contain printed EKG
strips. But because A.A.C. R4-11-1301(D)(1)(a) refers to “reports,” Shah
contends the Board improperly failed to inform him that printed strips are
required under the applicable standard of care. Instead, he maintains his
handwritten notations of the EKG readings made during C.N.’s surgery
“adequately document[] the patient’s cardiac status in compliance with
[A.A.C. R4-11-1301(D)(1)(a)].”
¶34 Shah’s argument in this specific regard is inconsistent with
his testimony at the Panel Interview. When the oral surgeon asked Shah
whether his surgical records have “[p]re and post operative EKG reports,”
Shah answered they did not, explaining: “Sometimes our printer would
get jammed and it wouldn’t print properly. And that’s what happened on
this particular incident.” This answer implied that absent mechanical
failure, such strips would have been available. This statement was
directly contrary to Shah’s previous written response to the Board’s
request for EKG monitoring strips, which asserted “his practice is to use
the EKG to monitor the patient’s condition but he does not generally print
out the strips.”
¶35 Viewing this evidence in the light most favorable to
sustaining the Board’s findings, as we must, Shah’s conflicting
explanations reflect, at a minimum, he was aware prior to the Panel
Interview that computer printed EKG strips were required to comport
with the standard of care and to satisfy A.A.C. R4-11-1301(D)(1)(a).
Furthermore, Shah’s testimony at the Panel Interview that his EKG printer
would “sometimes . . . get jammed” created a reasonable inference that,
although he was aware his surgery record-keeping did not satisfy the
standard of care, he failed to take appropriate and timely steps to rectify
the EKG monitor’s printing issues before C.N.’s surgery. We therefore
cannot conclude Shah was prejudiced by any alleged error in failing to
inform him of that standard. Accordingly, we cannot find reversible error
on this basis.
¶36 The Board’s finding regarding pre- and post-operative EKG
documentation discrepancies in Shah’s surgical records is also supported
by substantial evidence. The FDA’s black box warning for Droperidol,13
issued in 2001, requires surgical patients receiving the medication, such as
C.N., to undergo a 12-lead EKG prior to its administration “to determine if
a prolonged QT interval . . . is present.” In those patients for whom the
13 The drug is also known as “inapsine” and is sometimes improperly
referred to in the record as “roperidol.”
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SHAH v. AZ BRD DENTAL EXAM
Decision of the Court
potential benefits of the drug outweigh potentially serious arrhythmias,
EKG monitoring should continue post-treatment for two to three hours.
¶37 At the Panel Interview, Shah admitted he did not use a 12-
lead EKG prior to administering Droperidol and does not typically
“monitor” post-surgical patients who received the drug. Based upon this
admission, the Board could reasonably infer Shah’s pre- and post-
operative EKG documentation was non-compliant with the specific
procedures, required by the FDA, to determine what, if any, “prolonged
QT interval [was] present” at the time of and after C.N.’s surgery. Thus,
viewed under the applicable deferential standard, substantial evidence
supports the Board’s findings regarding deficiencies in Shah’s records.
B. Medication Times and Amounts
¶38 Next, Shah contests the Board’s revised finding of
discrepancies in the surgical records related to medication times and
amounts. Specifically, he implies reversible error occurred because the
Panel, and the Board, failed to specifically cite A.A.C. R4-11-1301(D)(1)(e),
which required a dentist to keep an anesthesia record listing all medications
given with dosage and time interval. Alternatively, he argues his surgical
records comply with R4-11-1301(D)(1)(e), and the Board’s finding
otherwise is “factually wrong and contrary to the record.” We disagree.
¶39 First, the Panel addressed Shah’s notation in the surgery
records indicating he administered a drug to treat hypertension at 10:35
a.m., when C.N.’s blood pressure was normal, and thirty minutes after it
had spiked. This notation supports a conclusion that the drug was given
improperly at a time when it was unnecessary, or alternatively,
administered the drug at a time different than that noted in his records.
Furthermore, the Board specifically identified discrepancies in the times
and amounts of all medications Shah administered during C.N.’s surgery.
¶40 Finally, the Panel specifically referenced two gaps in Shah’s
surgical anesthesia records where he failed to make any notations, the first
from 8:30 a.m. to 8:55 a.m., and the second from 10:05 a.m. to 10:35 a.m.
At first glance, Shah’s records seem to bear out this finding regarding the
two “gaps.” Upon closer inspection, the records do contain notations
regarding anesthesia medications given at 8:38/8:45 and 10:15, effectively
closing the first gap, and shortening the second. However, there are no
notations of medications given during the twenty-minute period between
10:15 a.m. and 10:35 a.m.
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SHAH v. AZ BRD DENTAL EXAM
Decision of the Court
¶41 Notwithstanding the lack of evidence supporting the first
gap, the record supports the second, and the Board’s expressed concern
remains valid: a third party reviewing the records of C.N.’s surgery
would not be able to determine what amounts of medications, if any, were
administered during the twenty-minute gap. Accordingly, substantial
evidence supports the Board’s finding14 that discrepancies existed
regarding medication times and amounts in Shah’s surgical records in
violation of A.A.C. R4-11-1301(D)(1)(e). Therefore, no reversible error
occurred on this basis.
C. Pharmacological Protocol
¶42 Shah next argues the Board’s finding that he failed to follow
applicable pharmacological protocol for ACLS is not supported by
substantial evidence. He does so while simultaneously conceding he did
not administer the drugs mandated by ACLS protocol for a patient in
asystole. We find this argument unavailing.
¶43 Although Shah posited at the Panel Interview that he
undertook equally appropriate, alternative life-saving measures, the
Panel, and ultimately the Board, disagreed with the propriety of Shah’s
failure to follow the protocol. Even if we disagreed with its reasoned
opinions, we would not substitute our judgment for the Board’s. Ariz.
Water Co. v. Ariz. Corp. Comm’n, 217 Ariz. 652, 659, ¶ 23, 177 P.3d 1224,
1231 (App. 2008) (“‘That a judge of the superior court, or that this court,
might be of the opinion that a different order should have been entered
than that which the [agency] did enter, does not, of itself, warrant reversal
of the [agency].’”) (quoting Ariz. Corp. Comm’n v. Fred Harvey Transp. Co.,
95 Ariz. 185, 189, 388 P.2d 236, 238 (1964)). Shah’s admitted non-
compliance with ACLS protocol is substantial evidence to support the
Board’s finding.
14 Contrary to Shah’s implication otherwise, the Board may lawfully
revise the Panel’s recommended findings as long as the revisions are
supported by substantial evidence. See, e.g., Ritland v. Ariz. State Bd. of
Med. Exam’rs, 213 Ariz. 187, 191, ¶¶ 12-14, 140 P.3d 970, 974 (App. 2006)
(holding the Medical Board, as the body responsible for issuing a final
administrative decision, “may overrule [an administrative law judge’s]
findings [of fact] if it finds evidence in the record for doing so”).
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SHAH v. AZ BRD DENTAL EXAM
Decision of the Court
D. “Black Box” Warning
¶44 Shah also challenges the merits of the FDA’s black box
warning for Droperidol. This argument is not relevant to the imposition of
discipline against Shah.
¶45 The basis for the Board’s factual finding and ultimate
conclusion that Shah engaged in unprofessional conduct was not Shah’s
method of administering Droperidol inconsistently with the protocol set
forth in the black box warning, but his admitted lack of awareness of the
warning. Again, Shah’s admission constitutes substantial evidence
supporting the Board’s finding, and no reversible error occurred.
E. Untimely Self-Report
¶46 Shah next challenges the Board’s factual finding regarding
his untimely self-report. See A.A.C. R4-11-1305 (requiring dentist to report
death occurring in dental office during administration of, or recovery
from, general anesthesia “within 10 days after the occurrence”). Shah
asserts he made his report on the business day following the tenth day
after the adverse occurrence, which fell on a Saturday, in accordance with
Arizona law.
¶47 Shah cites A.A.C. R2-19-107, which extends the last day of a
time period if it falls on a Saturday, Sunday, or legal holiday. That rule,
however, applies to administrative proceedings in the Office of
Administrative Hearings, and is therefore not applicable here. Id. In the
absence of any other authority, we find no justification to vacate this
factual finding. See Ariz. R. Civ. P. 61 (“[N]o error or defect in any ruling
or order or in anything done or omitted by the court or . . . the parties is
ground for . . . vacating, modifying or otherwise disturbing a judgment or
order, unless refusal to take such action appears to the court inconsistent
with substantial justice.”); ARCAP 13(a)(6) (requiring argument in
appellate brief contain “citations to the authorities, statutes, and parts of
the record relied upon”); Ritchie v. Krasner, 221 Ariz. 288, 305, ¶ 62, 211
P.3d 1272, 1289 (App. 2009) (deeming waived an issue unsupported by
legal authority).
V. Reasonableness of Continuing Education Order
¶48 Finally, Shah argues the imposition of sixteen hours of
continuing education on the topic of pharmacological agents used in
general anesthesia “is excessive because it is unwarranted.” We disagree.
As noted herein, the Board’s findings are supported by substantial
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Decision of the Court
evidence, consisting almost entirely of Shah’s own admissions. An order
of continuing education was within the Board’s discretion pursuant to
A.R.S. § 32-1263.01(B), and was supported by the facts elicited at the
informal hearing.
¶49 Where the record contains credible evidence of acts
warranting discipline, “it can scarcely be said that discipline within the
permissible range was taken without reasonable cause.” Maricopa Cnty.
Sheriff's Office v. Maricopa Cnty. Emp. Merit Sys. Comm'n, 211 Ariz. 219, 222-
23, ¶ 16, 119 P.3d 1022, 1025-26 (2005); see also Bishop v. Law Enforcement
Merit Sys. Council, 119 Ariz. 417, 421, 581 P.2d 262, 266 (App. 1978) (“The
determination of the penalty imposed by an administrative body will not
be disturbed unless there has been an abuse of discretion.”). Accordingly,
we find no basis to reverse the continuing education order.
CONCLUSION
¶50 Shah was provided sufficient notice and opportunity to be
heard at the informal investigative interview regarding the self-reported
death of his patient while under anesthesia. To the extent Shah has
identified any deficiencies in the administrative proceeding, they were
minor, non-prejudicial, and did not deny Shah due process. Furthermore,
the Board’s decision requiring Shah to complete continuing education is
supported by substantial evidence, is consistent with Arizona law, is not
arbitrary and capricious, and does not constitute an abuse of discretion.
Accordingly, the trial court’s judgment upholding the Board’s decision is
affirmed.
:gsh
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