Walker v. The N.C. State Bd. Of Dental Exam'rs , 245 N.C. App. 559 ( 2016 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA15-337
Filed: 16 February 2016
Wake County, No. 13 CVS 4049
CYNTHIA WALKER, D.D.S., Petitioner,
v.
THE N.C. STATE BOARD OF DENTAL EXAMINERS, Respondent.
Appeal by Petitioner from order entered 23 October 2014 by Judge Elaine
Bushfan in Superior Court, Wake County. Heard in the Court of Appeals
21 September 2015.
Ryan McKaig for Petitioner-Appellant.
Carolin Bakewell for Respondent-Appellee.
McGEE, Chief Judge.
Cynthia Walker (“Petitioner”) appeals from an order affirming the Final
Agency Decision (“the Decision”) of a panel of the North Carolina State Board of
Dental Examiners (“the Board”). The Board concluded in its Decision that Petitioner
had violated certain recordkeeping rules adopted by the Board and had been
negligent in the practice of dentistry. We affirm.
I. Background
Petitioner has been licensed to practice dentistry in North Carolina since 1993.
Petitioner was served with an Amended Notice of Hearing (“the Notice”) by the Board
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on or around 25 April 2012. The Notice alleged, inter alia, that Petitioner had failed
to properly document the reasons for prescribing narcotic pain medications for a
number of patients in her treatment records. A hearing was held on this matter on
1–2 November 2012 (“the Board hearing”). The Board issued its Decision on
21 February 2013, and concluded that Petitioner had “violated the Board’s rules and
the standard of care for recordkeeping for narcotic pain medications prescribed for
patients[,]” in violation of 21 N.C.A.C. 16T.101(a)(6)1 (“the Record Content Rule”) and
N.C. Gen. Stat. § 90-41(a)(12), respectively. Petitioner filed a Petition for Judicial
Review of the Decision on 21 March 2013. Following a hearing, the trial court denied
Petitioner’s petition and affirmed the Decision of the Board, in an order entered
23 October 2013 (“the order”). Petitioner appeals.
II. Standard of Review
Judicial review of the final decision of an administrative agency in a contested
case is governed by N.C. Gen. Stat. § 150B–51 (2013) in the North Carolina
Administrative Procedure Act (“the APA”). The statute “governs both trial and
appellate court review of administrative agency decisions.” N. C. Dept. of Correction
v. Myers, 120 N.C. App. 437, 440, 462 S.E.2d 824, 826 (1995), aff'd per curiam, 344
N.C. 626, 476 S.E.2d 364 (1996). Pursuant to N.C.G.S. § 150B–51(b), a reviewing
court may
1 21 N.C.A.C. 16T.101 was amended in 2015 and 21 N.C.A.C. 16T.101(a)(6) is currently codified
at 21 N.C.A.C. 16T.101(f). See 30 N.C. Reg. 342 (3 August 2015) (Effective 1 July 2015).
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reverse or modify the [final] decision [of an agency] if the
substantial rights of the petitioner[ ] may have been
prejudiced because the findings, inferences, conclusions, or
decisions are:
...
(2) In excess of the [agency’s] statutory authority[;]
...
(4) Affected by other error of law;
(5) Unsupported by substantial evidence . . . ; or
(6) Arbitrary, capricious, or an abuse of discretion.
When the issue for review is whether an agency's decision was supported by
“substantial evidence” or was “[a]rbitrary, capricious, or an abuse of discretion,” this
Court applies the “whole record” test. N.C.G.S. § 150B–51(c).
A court applying the whole record test may not substitute
its judgment for the agency's as between two conflicting
views, even though it could reasonably have reached a
different result had it reviewed the matter de novo. Rather,
a court must examine all the record evidence — that which
detracts from the agency's findings and conclusions as well
as that which tends to support them — to determine
whether there is substantial evidence to justify the
agency's decision. Substantial evidence is defined as
relevant evidence a reasonable mind might accept as
adequate to support a conclusion.
Watkins v. N.C. State Bd. of Dental Exam’rs, 358 N.C. 190, 199, 593 S.E.2d 764, 769
(2004) (citations and quotation marks omitted). We review de novo the questions of
whether a final agency decision was made “[i]n excess of the [agency’s] statutory
authority” or was “[a]ffected by other error of law[.]” N.C.G.S. § 150B–51(c).
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III. Violations
A. The Record Content Rule
Petitioner contends the trial court erred by affirming the Board’s conclusion
that she had violated the Record Content Rule. Specifically, Petitioner argues that
she did not violate the Record Content Rule because the rule does not require dentists
to record a “reason” for the medications prescribed in their treatment records. We
agree.
“Article [2a of the APA, N.C. Gen. Stat. §§ 150B-18–21.28 (2013), governs] . . .
an agency's exercise of its authority to adopt a rule.” See N.C.G.S. § 150B-18 (defining
the “[s]cope and effect” of Article 2a). Pursuant to N.C.G.S. § 150B-18, “[a] rule is not
valid unless it is adopted in substantial compliance with this Article.” N.C.G.S.
§ 150B-18 was largely amended in 2011, see 2011 N.C. Sess. Laws 398, § 1, to further
provide that
[a]n agency shall not seek to implement or enforce against
any person a policy, guideline, or other interpretive
statement that meets the definition of a rule contained in
[N.C.G.S. §] 150B-2(8a) if the policy, guideline, or other
interpretive statement has not been adopted as a rule in
accordance with this Article.
(emphasis added). N.C. Gen. Stat. § 150B-2(8a) (2013) defines a “rule” in this context,
inter alia, as “any agency regulation, standard, or statement of general applicability
that implements or interprets an enactment of the General Assembly . . . or that
describes the procedure or practice requirements of an agency.”
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The Record Content Rule provides that a dentist’s treatment records must
“include . . . [the] [n]ame and strength of any medications prescribed, dispensed or
administered along with the quantity and date.” Petitioner correctly notes that the
plain language of the Record Content Rule creates no requirement that dentists
record a “reason” for the medications prescribed in their treatment records. See In re
R.L.C., 361 N.C. 287, 292, 643 S.E.2d 920, 923 (2007) (“When the language of a
statute is clear and without ambiguity, it is the duty of this Court to give effect to the
plain meaning of the statute[.]”); see also Kyle v. Holston Grp., 188 N.C. App. 686,
692, 656 S.E.2d 667, 671 (2008) (“Our Supreme Court has applied the rules of
statutory construction to administrative regulations as well as statutes.”).
Accordingly, because a requirement that dentists record the “reason” for prescribing
medications would constitute a “rule” under N.C.G.S. § 150B-2(8a), the Board erred
by enforcing this “rule” against Petitioner without first adopting it in accordance with
the APA. See N.C.G.S. §§ 150B-2(8a), -18. However, for the reasons stated infra, we
believe this error did not “prejudice[ ]” the “substantial rights” of Petitioner and,
therefore, does not warrant reversal of the order. See N.C.G.S. § 150B-51(b).
B. Negligence
The Notice also alleged, and the Decision concluded, that Petitioner had been
negligent in the practice of dentistry by not recording the reasons for prescribing
certain narcotic pain medications to her patients. See N.C. Gen. Stat. § 90-41(a)(12)
(2013) (providing that the Board “shall have the power and authority to . . . [i]nvoke
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. . . disciplinary measures . . . in any instance or instances in which the Board is
satisfied that [a dentist] . . . [h]as been negligent in the practice of dentistry”). At the
Board hearing, the Board offered two expert witnesses who testified accordingly. Dr.
Keith Yount (“Dr. Yount”) confirmed in his testimony that the applicable “standard
of care require[s] North Carolina dentists to not only record [the] prescription [of]
controlled substances, but the reason for” prescribing those medications. Dr. Yount
further testified that Petitioner violated that standard. Dr. Richard Orlowski (“Dr.
Orlowski”) also testified that the applicable standard of care requires a dentist to
record “a reason why [the dentist is] prescribing [a] narcotic” pain medication and
that Petitioner violated that standard. Petitioner even acknowledged in her
testimony that she had received mandatory training for past recordkeeping violations
and that this training explained that dentists were expected to record the reasons for
the medications they prescribe.
Because “administrative boards which regulate providers of health care” need
only find that a provider “failed to conform to the standard of care invoked by the
Board” in order to conclude that the provider was negligent, In re McCollough v. N.C.
State Bd. of Dental Exam’rs, 111 N.C. App. 186, 193, 431 S.E.2d 816, 819 (1993), the
testimony of Dr. Yount, Dr. Orlowski, and Petitioner provided the Board with
“substantial evidence” that Petitioner had been negligent in the present case. See
Watkins, 358 N.C. at 199, 593 S.E.2d at 769. Therefore, the trial court’s affirmation
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of the Decision will be overturned only if the Board’s conclusion that Petitioner acted
negligently was “[a]rbitrary, capricious, or an abuse of discretion[,]” made “[i]n excess
of statutory authority[,]” or resulted from “other error of law.” See N.C.G.S. § 150B–
51.
Similar to her previous argument, Petitioner contends that the rule-
enforcement limitation in N.C.G.S. § 150B-18, discussed above, also prohibited the
Board from disciplining her for negligence under N.C.G.S. § 90-41(a)(12) – specifically
because the Board had not adopted a rule that dentists must record a “reason” for the
medications prescribed in their treatment records. We disagree.
The authority given to the Board under N.C.G.S. § 90-41(a)(12) does not
emanate from the Board’s general rulemaking authority under Article 2a of the APA.
N.C.G.S. § 90-41(a)(12) is not even part of the APA.2 Instead, the language in
N.C.G.S. § 90-41(a)(12) that the Board “shall have the power and authority to . . .
[i]nvoke . . . disciplinary measures . . . in any instance or instances in which the Board
is satisfied that [a dentist] . . . [h]as been negligent in the practice of dentistry” was
expressly granted to the Board by a specific enactment of the General Assembly.
(emphasis added); accord McCollough, 111 N.C. App. at 193–94, 431 S.E.2d at 820
(affirming the Board’s determination that a dentist acted negligently under N.C.G.S.
2 However, the adjudication of contested cases by occupational licensing agencies are still
governed by Article 3a of the APA. See N.C. Gen. Stat. §§ 150B-38–42 (2013).
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§ 90-41(a)(12), even though the dentist violated an “unwritten standard of care . . .
[not] previously addressed by the Board[.]”).
This Court adheres to the long-standing principle that
when two statutes arguably address the same issue, one in
specific terms and the other generally, the specific statute
controls. And when that specific statute is clear and
unambiguous, we are not permitted to engage in statutory
construction in any form. This Court may not construe the
statute in pari materia with any other statutes, including
those that treat the same issue generally. . . . We may look
no further than the [specific] statute's plain language to
determine whether [the agency] possessed the power it
claims in this case.
High Rock Lake Partners, LLC v. N.C. Dep't of Transp., 366 N.C. 315, 322, 735 S.E.2d
300, 305 (2012) (citations omitted).
Although N.C.G.S. §§ 90-41(a)(12) and 150B-18 appear to overlap on the issue
of agency discipline, the allocation of authority by the General Assembly to the Board
under N.C.G.S. § 90-41(a)(12) is more specific than the allocation under N.C.G.S.
§ 150B-18. N.C.G.S. § 90-41(a)(12) was enacted to apply specifically to the practice
of dentistry and in “any instance or instances in which the Board” concludes that a
dentist was negligent.3 (emphasis added). Conversely, the rule enforcement
limitation in N.C.G.S. § 150B-18 is aimed at defining the “[s]cope and effect” of Article
2a of the APA, which in turn applies only to the authority of agencies to adopt rules
3 Specifically, Chapter 90 of North Carolina’s General Statutes governs the practice of
“[m]edicine and [a]llied [o]ccupations” and Article 2 of Chapter 90 addresses the practice of dentistry.
See N.C.G.S. §§ 90-23–48.6 (2013).
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generally. Moreover, the language in N.C.G.S. § 90-41(a)(12) that the Board “shall
have the power and authority to . . . [i]nvoke . . . disciplinary measures . . . in any
instance or instances in which the Board is satisfied that [a dentist] . . . [h]as been
negligent in the practice of dentistry[,]” (emphasis added), is “clear and
unambiguous[.]” See High Rock Lake Partners, 366 N.C. at 322, 735 S.E.2d at 305.
Therefore, N.C.G.S. § 90-41(a)(12) controls.
Under the plain language of N.C.G.S. § 90-41(a)(12), see id., we cannot say the
Board “exce[eded] [its] statutory authority” by concluding that Petitioner had been
negligent in the practice of dentistry. See N.C.G.S. § 150B-51(b). For similar reasons,
we cannot say that the Board’s decision with respect to Petitioner’s negligence was
“[a]rbitrary, capricious, or an abuse of discretion” or “[a]ffected by other error of
law[.]” See id. Therefore, the trial court did not err by affirming the Decision on that
ground. Moreover, because the alleged misconduct by Petitioner under N.C.G.S. § 90-
41(a)(12) and the Record Content Rule was identical, and because the Board could
properly discipline Petitioner for having acted negligently under N.C.G.S. § 90-
41(a)(12), Petitioner has not established that her “substantial rights . . . [were]
prejudiced” by the trial court’s error regarding the Record Content Rule. See id. The
order of the trial court is affirmed.
AFFIRMED.
Judges ELMORE and DAVIS concur.
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