ALJDEC decisions subject to certification as final

20F-202000044-MP-DEN · Board of Dental Examiners · 2020-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

Nicholas J. Meyer, D.D.S.

Holder of License No. D003838

For the Practice of Dentistry

In the State of Arizona.

No. 20F-[number redacted]-MP-DEN

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 3, 2020

APPEARANCES: No one appeared for Nicholas J. Meyer, DDS; Seth T. Hargraves, Esq. for the State Board of Dental Examiners

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On September 29, 2020, the Arizona State Board of Dental Examiners (“Board”) issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing at 8:30 a.m. November 3, 2020 at the Office of Administrative Hearings in Phoenix, Arizona.

Through the Complaint and Notice of Hearing, the Board alleges that Respondent Nicholas J. Meyer, DDS committed unprofessional conduct by failing to comply with a subpoena issued by the Board.

No representative appeared for Dr. Meyer and the matter was convened in his absence at about 8:47 a.m.

Dr. Meyer holds license number D0038338 issued by the Board.

On September 12, 2019, the Board received a Medical Malpractice Report showing that a settlement had been paid in a matter in which Dr. Meyer was the practitioner. As required by statute, the Board opened an investigation.

On February 7, 2020, the Board issued to Dr. Meyer a subpoena for the treatment records related to the malpractice settlement.

On February 14, 2020, the Board received from Dr. Meyer a letter in response to its subpoena, but he did not provide any treatment records. Instead, Dr. Meyer set forth what he styled as an offer for the Board to clarify its subpoena request, which he conditioned on the Board providing proof of a number of “claims.”

On their face, most of these “claims” are frivolous. For example, provide proof that “I am a person and not a man (human being).”

Through a letter dated April 2, 2020 that was sent to Dr. Meyer’s address of record, the Board advised Dr. Meyer that it had voted to offer him a Consent Agreement and Assessment of Non-Disciplinary Civil Penalty for Failure to Comply with Subpoena. The Board set an April 11, 2020 deadline by which Dr. Meyer had to notify it if he did consent by returning a signed copy of the Agreement.

Dr. Meyer did not respond to the Board’s letter of April 2, 2020.

Through a letter dated May 20, 2020 that was sent to Dr. Meyer’s address of record, the Board informed Dr. Meyer that it would consider the matter at its June 5, 2020 meeting.

Dr. Meyer did not appear at the June 5, 2020 meeting, at which the Board voted to table the matter.

Through a letter dated July 6, 2020 that was sent to Dr. Meyer’s address of record, the Board informed Dr. Meyer that the matter would be considered at its July 17, 2020 meeting.

The Board’s letter of July 6, 2020 was returned to the Board with a Postal Service label showing “Return to Sender ... Unable to Forward,” and a handwritten note showing “No such person at this address.”

At its meeting on July 17, 2020, the Board voted to issue a Complaint and Notice of Hearing.

The Complaint and Notice of Hearing were mailed to Dr. Meyer at his address of record and were delivered on October 3, 2020.

Subsequently, the Board received through the mail from Dr. Meyer two of the envelopes that the Board had sent to him, one of which was from the Complaint and Notice of Hearing. These envelopes were sign by Dr. Meyer and included the notation “refusal for cause without dishonor, UCC 3-501, 2-207(2)(c).”

The return address on Dr. Meyer’s mailing is his address of record and the address to which the Board had sent its letters and the Complaint and Notice of Hearing.

The Board requests that Dr. Meyer’s license be revoked and that he be required to reimburse the Board for the cost of the hearing.

CONCLUSIONS OF LAW

The Board bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

The Board was required to open an investigation after it received notification that a malpractice claim against Dr. Meyer had been settled. Ariz. Rev. Stat. § 32-3203.

Dr. Meyer was required to provide the Board with patient records in response to its subpoena. Ariz. Rev. Stat. § 32-1264(C); § 32-1263.02(K).

Ariz. Rev. Stat. section 32-1201.01, Definition of unprofessional conduct, provides in part:

For the purposes of this chapter, "unprofessional conduct" means the following acts, whether occurring in this state or elsewhere:

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14. Committing any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.

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23. Failing to comply with a board subpoena in a timely manner.

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24. Failing or refusing to maintain adequate patient records.

The Board’s notices and letters to Dr. Meyer were reasonably calculated to provide him actual notice because these were sent to his address of record. See Ariz. Rev. Stat. § 41-1092.04. Moreover, the preponderance of the evidence shows that Dr. Meyer had actual knowledge of the Board’s subpoena request and that he had actual knowledge that the Complaint and Notice of Hearing had been issued.

The preponderance of the evidence shows that Dr. Meyer committed unprofessional conduct because he did not comply with the Board’s subpoena.

The Board has not shown by a preponderance of the evidence that Dr. Meyer’s actions are a danger to the health, welfare or safety of a patient or the public.

The Board has not shown by a preponderance of the evidence that Dr. Meyer failed or refused to maintain adequate patient records.

Because Dr. Meyer has committed unprofessional conduct, the Board has authority to take disciplinary action against his license. Ariz. Rev. Stat. § 32-1263(A)(1) and (A)(4).

Considering Dr. Meyer’s letter in response to the Board’s subpoena and his failure to appear at the Board’s meetings or this hearing, his license should be revoked.

Because Dr. Meyer has committed unprofessional conduct, the Board also has authority to charge him for the costs of the formal hearing. Ariz. Rev. Stat. § 32-1263.02(M). Considering the facts of this matter, it is appropriate to require Dr. Meyer to reimburse the Board for the costs of the hearing.

RECOMMENDED ORDER

IT IS ORDERED that Nicholas J. Meyer, DDS’s license number D0038338 is revoked;

IT IS FURTHER ORDERED that Dr. Meyer must reimburse the Board for its costs related to the formal hearing in this matter.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is five days after the date of that certification.

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-137160-45720000Done this day, December 9, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Ryan Edmonson,

Board of Dental Examiners

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-137160-45720000