ALJDEC decisions subject to certification as final

08F-280202-DEN · Board of Dental Examiners · 2008-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 20, 2008 and August 21, 2008. APPEARANCES: The Arizona Board of Dental Examiners was represented by Assistant Attorney General Mary DeLaat Williams. Clayton D. Wainwright, DDS appeared personally and was represented by his attorney, Jeffrey J. Tonner, Esq. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order:

FINDINGS OF FACT

1. The Arizona State Board of Dental Examiners (“Board”) is the authority for licensing and regulating the practice of dentistry in Arizona. 2. Clayton D. Wainwright, DDS (“Respondent”) is the holder of License No. D3938 issued by the Board. 3. The Board issued a Complaint and Notice of Hearing (“Complaint”) alleging acts of unprofessional conduct by Respondent in the following cases: Complaint No. 270515; Complaint No. 270224; Complaint No. 270453, Complaint No. 280001, and Complaint No. 270237. 4. In his Answer to the Complaint, Respondent admitted to the following factual allegations:

III. Parties 1. and 2., which are incorporated herein by reference. IV. Factual Allegations Complaint No. 270515

3. On or about April 2, 2007, Respondent and the Board entered into a Consent Agreement, a term of which ordered Respondent to take and complete six hours of continuing dental education in the area of infectious disease control no or before October 2, 2007.

4. Respondent failed to take and complete the continuing education. As a result, the Board opened complaint no. 270515 against Respondent for his failure to comply with the terms of the Consent Agreement. On April 11, 2008, the Board voted to forward complaint no. 270515 to a formal hearing.

Complaint No. 270224

5. On or about October 20, 2008, the Board issued an order in complaint no. 250128 against Respondent finding that he engaged in unprofessional conduct relating to his treatment of patient G.S. The Board ordered Respondent to take and complete six hours of continuing dental education in the areas of recorded keeping documentation and twelve hours of hands-on continuing dental education in the area of crown and bridge on or before November 24, 2006. Respondent received the order on October 21, 2005 and did not appeal it.

6. Respondent failed to comply with the order in complaint no. 250128. He completed the required hands-on crown and bridge continuing education after November 24, 2006 and failed to take the continuing education in record keeping documentation.

7. On June 1, 2007, the Board opened complaint no. 270224 against Respondent based upon his failure to comply with the Board’s order in complaint no. 250128. On December 7, 2007, the Board voted to forwared [sic] complaint no.. 270224 to a formal hearing.

Complaint No. 270453

8. On or about November 5, 2007, C.S. filed complaint no. 270453 with the Board against Respondent relating to his treatment of J.S., C.S.’ wife.

9. Respondent proposed a treatment plan for J.S. consisting of an examination, prophylaxis, radiographs, a build-up and crown, an extraction, and multiple fillings. The total amount of the proposed treatment plan was $4,500.00. At the suggestion of Respondent, C.S. and J.S. obtained a loan from Care Credit for the entire amount of the proposed treatment plan. Care Credit sent $4,500.00 directly to Respondent for the proposed treatment. 10. Of the total proposed treatment, Respondent completed the examination, full mouth radiographic series and an extraction of J.S.’ tooth no. 18. The amount for the services Respondent performed totaled $390.00.

Complaint No. 280001

15. On or about January 13, 2008, E.S. filed complaint no. 280001 with the Board against Respondent relating to the treatment provided to him.

16. E.S. saw Respondent in February 2007. Respondent proposed treatment for E.S. consisting of an examination, full mouth series of radiographs, crowns on teeth nos. 19 and 24, root canal treatment and a crown on tooth no. 3, fillings on teeth nos. 19 and 24, root canal treatment and a crown on tooth no. 3, fillings on teeth nos. 4, 7 and 18, a periodontal evaluation, and four quadrants of root planning.

20. As part of the investigation of complaint no. 280001, the Board issued a subpoena to Respondent for E.S.’s treatment records. Respondent received the subpoena on January 16, 2008 and was required to submit the records on or before January 29, 2008. Respondent untimely requested an extension of time to respond to the subpoena. Respondent did not submit the records until March 11, 2008.

22. On April 11, 2008, the Board voted to refer complaint no. 280001 to a formal hearing.

Complaint No. 270237

23. On or about June 15, 2007, patient D.B. filed complaint no. 270237 with the Board against Respondent relating to the treatment Respondent provided to her.

24. On January 27, 2006, Respondent placed a bridge in D.B.’s mouth from teeth nos. 6 to 11. Subsequent to the bridge being placed, D.B. complained to Respondent that she was experiencing pain. Respondent failed to take a radiograph of the affected area until July 14, 2006, rather than when D.B. initially complained about the pain, at which point the radiograph showed an abscess on tooth no. for which D.B. needed treatment.

26. As part of the investigation of complaint no. 270237, the Board issued a subpoena to Respondent for D.B.’s treatment records. Respondent received the subpoena on June 25, 2007 and was required to submit the records to the Board on or before July 9, 2007. Respondent timely requested an extension until July 20, 2007 to submit the records. On July 20, 2007, Respondent requested a second extension until August 1, 2007 to submit the records. Respondent did not submit the treatment records for D.B. until September 1, 2007.

5. In his Answer, Respondent denied the allegations contained in paragraphs 11, 14, 17, 18, 19, 21, 24, and 25 of the Complaint. 6. In his Answer, Respondent stated that he “is without knowledge or information sufficient to form a belief as to the truth of allegations and 13 set forth in the Complaint. 7. In his Answer, Respondent raised the affirmative defense that “he has an unpredictable debilitating medical condition which, at times, has prevented him from following board orders and taking other action.” 8. Sam Palmer, D.D.S. is the Board’s chief investigator. He has held that position since 1999. Dr. Palmer is also an adjunct clinical instructor at the Arizona School of Dentistry located in Mesa, Arizona.

Allegations denied by Respondent Complaint 270453 9. Respondent has denied Complaint Allegation No. 11:

Prior to completing the proposed treatment plan, J.S. discontinued treatment with Respondent and requested a refund of the amount Respondent received from Care Credit for the treatment J.S. did not have done. Respondent agreed to refund the money in April 2007. to date, Respondent has refunded only $2,000.00 to C.S. and J.S. for the treatment that Respondent did not complete.

10. Respondent entered into a repayment agreement with J.S. and C.S. Respondent agreed to repay them $500.00 per month commencing in March 2008. Respondent made a payment in March. He made no payments in April or May 2008. He made a payment in June 2008, but asked the patient and her husband not to cash the check. 11. Respondent owes J.S. and C.S. the remaining balance of $2,110.00. 12. J.S. and C.S. have been harmed by Respondent’s failure to repay the unearned money to them. They have not been able to repay their loan taken out for the anticipated treatment and they have had to pay interest payments to the lender on the outstanding loan balance. 13. Respondent denied Complaint Allegation 14:

As part of the Board’s investigation of complaint no. 270453, the Board subpoenaed Respondent’s treatment records for J.S. Respondent failed to maintain adequate treatment records for J.S. because they do not contain a documented diagnosis supporting the proposed treatment for J.S. Additionally, Respondent failed to document and chart J.S.’ existing dental conditions in the treatment records.

14. Respondent’s treatment records for J.S. contain no recording of decayed teeth or the identification of decayed surfaces. Respondent’s treatment records lack a written diagnosis for the patient. Therefore, Respondent fell below the dental standards for clinical/dental charting.

Complaint No. 280001 15. Respondent denied Complaint Allegation 17:

E.S. paid Respondent in full for all of the proposed treatment through a loan with Care Credit in the amount of $4,030.00. E.S. became dissatisfied with Respondent prior to completing all of the proposed treatment and discontinued seeing him. Respondent did not complete the filling on tooth no. 18, the periodontal evaluation, and the upper right and left quadrants of root planning. Respondent owes E.S. a refund of $2,640.00 for the treatment that was not provided.

16. At the hearing, Respondent presented an exhibit, which was admitted into evidence, showing a withdrawal from his banking account on March 24, 2008 in the amount of $2,640.00. Respondent contends that those funds were repaid to E.S. Respondent did not provided evidence of the form of repayment to E.S. 17. Notwithstanding any belated repayment to E.S., Respondent wrongfully retained the balance due to the patient for approximately one year. E.S. was deprived of those funds to repay the loan obtained for the proposed treatment. E.S. also incurred interest payments on the outstanding balance owed on the loan. 18. Respondent denied Complaint Allegation 18:

The root canal therapy Respondent did on E.S.’ tooth no. 3 was below the standard of care. Respondent’s treatment notes for E.S. indicate that he overfilled the palatal canal of tooth no. and the radiographs of E.S. indicate that Respondent did not use a rubber dam during the root canal treatment. Respondent also failed to take post operative radiographs of tooth no. 3 following the root canal therapy.

19. Respondent’s treatment records for E.S. do not document the use of a rubber dam during the root canal therapy. 20. Respondent testified that he did use a rubber dam, but removed it to take radiographs. 21. Dr. Palmer gave the following credible testimony regarding the standard of care for using a rubber dam during root canal therapy:

During the root canal treatment, the rubber dam should be used from the time you open into the pulp chamber until the time you seal those canals. And there’s three reasons for that. One is, the contamination by saliva in the root canal decreases the chance of prognosis for the success of that root canal. Taking it off to take an x-ray is not necessary because it’s routinely done, and there’s no endodontic program in the United States that allows you to remove the rubber dam during the treatment of a root canal.

22. Respondent violated the standard of care for the proper use of a rubber dam during a root canal treatment. 23. There is credible evidence that Respondent did not take a final x-ray of tooth no. 3. 24. Respondent denied Complaint Allegation 19:

The filling Respondent placed on E.S.’ tooth no 17 on May 17, 2007 was below the standard of care because the filling fell out soon after Respondent place it.

25. There is no credible factual basis to support Complaint Allegation 19. 26. Respondent denied Complaint Allegation 21:

Respondent failed to maintain adequate treatment records for E.S. Respondent failed to document E.S.’ existing dental conditions. Additionally, the treatment records do not contain a written diagnosis supporting Respondent’s treatment plan for E.S.

27. The evidence of records provides an adequate factual basis supporting Complaint Allegation 21. Respondent failed to chart surfaces and provide clear, understandable and concise charting documentation.

Complaint No. 270237 28. Respondent denied Complaint Allegation 24:

On January 27, 2006, Respondent placed a bridge in D.B.’s mouth from teeth nos. 6 to 11. Subsequent to the bridge being placed, D.B. complained to Respondent that she was experiencing pain. Respondent failed to take a radiograph of the affected area until July 14, 2006, rather than when D.B. initially complained about the pain, at which point the radiograph showed an abscess on tooth no. 6 for which D.B. needed treatment.

29. The evidence of record supports Complaint Allegation 24. 30. Respondent denied Complaint Allegation 25:

Respondent [sic] treatment of D.B. fell below the standard of care. On March 27, 2007, D.B. saw a different dentist who found recurrent decay on tooth no. 11, an abscess on tooth no. 11, and an open margin on tooth no. 6. Additionally, Respondent’s treatment records for D.B. indicate that he placed the bridge from teeth 6 to 11 in the presence of moderate to advanced periodontal disease, without first treating the periodontal disease.

31. D.B. was subsequently treated by Dr. Hinh on or about March 27, 2007. D.B. initially presented to Dr. Hinh for a limited examination of tooth no. 14. During the examination D.B. also complained about tooth no. 11. Dr. Hinh found tooth no. 11 abscessed with an apical radiolucency. He also found that tooth no. 6 has recurrent decay on the distal facial area. 32. Dr. Hinh performed a root canal treatment on tooth no. 11 and a replacement of bridge from teeth nos. 6 to 11 due to recurrent decay on 11 and an open margin on tooth no. 6. D.B.’s bridge was loose. 33. The Board has criticized Respondent for attaching a bridge to teeth nos. 6 to 11 “in the presence of moderate to advanced periodontal disease, without first treating the periodontal disease.” 34. Dr. Hinh also worked on teeth nos. 6 and 11, then he replaced the bridge without treating the periodontal disease. 35. The periodontal measurement taken of the pockets of teeth nos. 6 and by Respondent prior to the installation of the bridge do not support the criticism that he should have first treated the periodontal disease of those teeth.

Respondent’s Affirmative Defense 36. In his Answer, Respondent raises the affirmative defense “that he has an unpredictable medical condition, which, at times, has prevented him from following certain Board Orders and taking other action. 37. In early 2000, Respondent received a preliminary diagnosis of pancreatic cancer. It took him approximately one year to have surgery. After the surgery he was diagnosed with an enlarged pancreas not pancreatic cancer. 38. Respondent has kidney disease and requires dialysis three times a week. 39. Respondent is on a waiting list for a kidney transplant. He is required to show that he is employed and has income to be eligible for the transplant. 40. Respondent’s prognosis is not good if he does not receive a transplant. 41. Respondent testified that he tires easily when treating patients, and that he must rest after short periods of treating a patient. 42. Respondent testified that he is slow when treating a patient. 43. Respondent also testified that he experiences depression due to his medical conditions. 44. Respondent contends that any revocation or suspension of his dental license will amount to a death sentence for him since he will no longer qualify for a kidney transplant. 45. The Board must balance its duty to protect the public and Respondent’s medical condition. The protection of the public must be paramount.

CONCLUSIONS OF LAW

1. The Board has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G) (2), the Board has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. In Complaint No. 270515, Respondent committed unprofessional conduct under A.R.S. § 32-1201(20) (w). The factual basis for this violation is Respondent’s violation of the Board’s Order. 4. In Complaint No. 270453, Respondent committed unprofessional conduct under A.R.S. § 32-1201(20) (w). The factual basis for this violation is Respondent’s violation of the Board’s Order. 5. In Complaint No. 270453, Respondent committed unprofessional conduct under A.R.S. § 32-1201(20 (p). The factual basis for this violation is Respondent’s charging, collecting and retaining payment in full for the proposed treatment plan for the patient, but he retained for an excessive period of time the unearned payment for which the patient paid interest payments on the balance due to be repaid. Respondent still owes the patient unearned money paid in advance for treatment. 6. In Complaint No. 270453, Respondent committed unprofessional conduct under A.R.S. § 32-1201(20 (p). The factual basis for this violation is Respondent’s charging, collecting and retaining payment in full for the proposed treatment plan for the patient, but he retained for an excessive period of time the unearned payment for which the patient paid interest payments on the balance due to be repaid. 7. In Complaint No. 280001, Respondent committed unprofessional conduct under A.R.S. § 32-1201(20 (p). The factual basis for this violation is Respondent’s charging, collecting and retaining payment in full for the proposed treatment plan for the patient, but he retained for an excessive period of time the unearned payment for which the patient paid interest payments on the balance due to be repaid. 8. In Complaint No. 270453, Respondent committed unprofessional conduct under A.R.S. § 32-1201(20) (n). Respondent’s treatment of patient E.S. fell below the standard of care and constituted a danger to the patient. 9. In Complaint No. 280001, Respondent committed unprofessional conduct under A.R.S. § 32-1201(20) (n). Respondent’s treatment of patient D.B. fell below the standard of care and constituted a danger to the patient. 10. In Complaint No. 270453, Respondent committed unprofessional conduct under A.R.S. § 32-1201(20) (y) and a violation of A.R.S. § 32-1264(A). Respondent failed to maintain adequate treatment records for J.S. 11. In Complaint No. 270453, Respondent committed unprofessional conduct under A.R.S. § 32-1201(20) (y) and a violation of A.R.S. § 32-1264(A). Respondent failed to maintain adequate treatment records for J.S. 12. In Complaint No. 280001, Respondent committed unprofessional conduct under A.R.S. § 32-1201(20) (y) and a violation of A.R.S. § 32-1264(A). Respondent failed to maintain adequate treatment records for E.S. 13. In Complaint No. 28001, Respondent committed unprofessional conduct as defined in A.R.S. § 32-1201(20) (x). Respondent failed to timely comply with the subpoena issued in complaint no. 280001. 14. In Complaint No. 270237, Respondent committed unprofessional conduct as defined in A.R.S. § 32-1201(20) (x). Respondent failed to timely comply with the subpoena issued in complaint no. 270237. 15. The Board has the authority to discipline Respondent for the above- described violations, pursuant to A.R.S. § 32-1263(1) and (4), 32- 1263.01(C).

RECOMMENDED ORDER

Respondent’s License No. D3938 shall be suspended for a period of two years commencing on the effective date of the Order entered in this matter, subject to the following terms and conditions:

1. Respondent’s License No. D3938 shall be actively suspended commencing on the effective date of the Order entered until Respondent has repaid J.S. and C.S. the entire amount due and owing to them. 2. Upon providing the Board with written proof that he has repaid J.S. and C.S. in full, and upon the Board accepting such proof of total repayment, then Respondent’s dental license shall not be actively suspended but instead shall be placed on disciplinary probation for the balance of a staid two-year suspension, subject to the following conditions: a). Respondent shall undergo a medical evaluation to determine his medical competency to practice dentistry. Respondent shall execute any medical release forms to allow the Board access to the records of the medical evaluation. b). Respondent shall comply with any treatment plan developed as a result of his medical evaluation. c). Respondent shall be permanently prohibited from accepting any prepaid treatment plan payments from any patient, even after the expiration of the two-year suspension. d). Respondent shall timely comply with any subpoenas issued by the Board to him. e). Provide further proof to the Board that patient E.S. has received payment of the outstanding balance of $2,610 owed to him.

3. Any violation of the above-described staid suspension shall be grounds for further disciplinary action against Respondent, subject to due process procedures. Done this day, September 10, 2008

______________________________________ Brian Brendan Tully Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Kevin B. Earle, MPH, Executive Director Board of Dental Examiners 5060 North 19th Avenue, Suite 406 Phoenix, AZ 85015

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826