ALJDEC decisions subject to certification as final

23F-21066-21278-DEN · Board of Dental Examiners · 2024-04-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Thomas A. Endicott, DDS

Holder of License No. D008629

For the Practice of Dentistry

In the State of Arizona

No. 23F-21066-21278-DEN

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 29, 2023 and March 19, 2024.

APPEARANCES: Assistant Attorney General Seamus Monaghan, Esq. appeared on behalf of the Arizona State Board of Dental Examiners (“Board”) with Dr. Anthony Caputo and Dr. Julie Cutler as witnesses. No appearance(s) by or on behalf of Thomas A. Endicott (“Respondent”). April Romero and Anne Ryman observed. Teresa Watson (CCR No. 50876) served as the Court Reporter for these proceedings.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

EXHIBITS ADMITTED INTO EVIDENCE: The Complaint and Notice of Hearing for License Revocation (“Complaint”) was admitted into the record along with Public Board Exhibits 1, 3,6-7, 9-12, 14, and 17, Confidential Board Exhibits 2, 4-5, 8, 13, 15-16, and 18, and Minute Entries dated December 03, 2023, December 29, 2023, January 15, 2024, and February 14, 2024.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative

Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Acting Executive Director of the Board.

FINDINGS OF FACT

Background and Procedure

The Board has the authority to regulate and control the practice of general dentistry in the State of Arizona.

Respondent is holder of License No D008629, issued on December 14, 2012, for the practice of dentistry in the State of Arizona.

On April 05, 2021, the Board received a self-report from Respondent regarding an incident that occurred at his practice, Bellview Dental in Glendale, Arizona, on March 29, 2021, whereby a patient (“C.L.”) died during treatment. Specifically, Respondent advised that C.L. had a treatment plan for the extraction of teeth numbers 7-11, 19, and 22-27 and immediate denture placement, but that her blood pressure was “a little high” when she reported for the procedure. After confirming that C.L. had taken her prescription blood pressure medication, Respondent injected her with “2 cart of carbocaine,” “3 cart of septocaine” and removed all of C.L.’s upper teeth and all but two (2) of her lower teeth. During the procedure C.L. “stated that she was having trouble breathing” but declined oxygen and emergency medical services. 30-40 minutes after C.L. self-administered a “nitro pill,” Respondent extracted her last 2 teeth. When Respondent attempted to place C.L.’s dentures she complained about her inability to breathe. C.L. declined emergency medical services and self-administered “another nitro pill.” Respondent left C.L. with an attendant. Approximately 30 minutes later, during which time C.L. self-administered “another nitro pill” and emergency medical services were called, Respondent returned to find C.L. “bent over.” C.L. loses consciousness. Respondent begins cardiopulmonary resuscitation (“CPR”). First responders arrive shortly thereafter and take over. C.L. is taken to a local hospital. Respondent is later advised that C.L. perished during transport and arrived deceased.

No other documents were attached to Respondent’s self-report.

On April 12, 2021, the Board issued an Adverse Occurrence form to Respondent, and asked that he return it with C.L.’s patient file.

On May 13, 2021, the Board issued a reminder to Respondent that his reply was due by May 17, 2021.

On May 17, 2021, Respondent provided C.L.’s incomplete patient records to the Board.

On July 26, 2021, the Board received a complaint from a patient (“R.R.”) regarding care he received from several dentists, including Respondent, at Desertview Dental Care in Peoria, Arizona. Specifically, R.R. alleged that he was evaluated on February 03, 2021, and agreed to a treatment plan to extract 4 upper teeth, 2 lower teeth, any necessary bone grafts, and partial upper and lower placements. R.R. was initially quoted $7,950.00 for the treatment plan, but due to issues with his insurance he agreed to finance the work for $12,000.00, or monthly payments of $208.00. On February 22, 2021, after his initial appointment was rescheduled, the first tooth was extracted but the second tooth broke below the gum line during its extraction. R.R.’s gum line was cut across 4 teeth in order to remove the broken piece of tooth. He was sent home without any medication. On March 01, 2021, an infection was discovered in R.R.’s mouth. He was sent home with prescription medication. On March 15, 2021, Respondent assumed R.R.’s care. At that time, R.R. was advised that instead of performing 2 extractions as planned, he was going to have an unexplained root canal on a tooth that was not previously identified for treatment, for an additional $1,920.00. R.R. agreed. Respondent took upper and lower impressions of RR’s teeth, including bite registration and shade comparison. The root canal was performed and a temporary crown was placed. Respondent did not include any clinical treatment notes, or the diagnosis or reasoning for the performed root canal. About an hour after leaving the dental office, R.R.’s temporary crown broke. On April 08, 2021, R.R. was informed that it was unclear “why we did the root canal.” Extraction of the tooth was offered and R.R. accepted. During the extraction an instrument slipped and pierced through R.R.’s tongue. The broken portions of the tooth at issue were not recovered. On April 19, 2021, R.R. was advised that his treatment plan needed to be changed because his remaining upper teeth were not strong enough to hold a partial placement. R.R. was further advised that his remaining upper teeth required extraction and full dentures needed to be placed for $22,200.00. R.R. declined treatment and requested a refund.

During its investigation, the Desertview Dental Care office manager confirmed that Respondent was R.R.’s provider and performed the treatment at issue.

There is no evidence in R.R.’s treatment record that periodontics charting or probing was done or denoted prior to performing his root canal and placing the temporary crown. X-rays taken by Respondent show gross decay, a 3⁄4 clinical crown fracture, periapical radiolucency, and compromised biologic width of the tooth; which establishes that Respondent knew, or should have known, that it had a poor to non-restorable prognosis, and that it was likely the crown would fail. Respondent also failed to place a post with build-up under the crown preparation.

No clinical notes are documented by Respondent for R.R.’s April 27, 2023, visit.

On December 20, 2021, Respondent was advised of the complaint by the Board, and given copy of the complaint and R.R.’s dental records. Respondent was advised to reply no later than January 02, 2022. Respondent did not reply.

On March 15, 2022, the Board invited Respondent to participate in a formal interview regarding C.L. on May 06, 2022. Although the correspondence was mailed to Respondent’s address of record, it was subsequently returned by the United States Postal Service as undeliverable to Respondent.

On March 08, 2023, the Board invited Respondent to participate in a formal interview regarding R.R. on May 12, 2023. Although the correspondence was mailed to Respondent’s address of record, it was subsequently returned by the United States Postal Service as undeliverable to Respondent.

On October 31, 2023, the Board referred this matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on December 29, 2023. Per the Complaint and Notice of Hearing for License Revocation (“Complaint”) for Case No. [number redacted] issued on November 15, 2023, the issues to be determined are whether the Board has cause to discipline Respondent’s license, up to and including revocation, for alleged acts of unprofessional conduct pursuant to Arizona Revised Statutes (“Ariz. Rev. Stat.”) §§ 32-1201.01(14) (“Committing any conduct or practice that constitutes a danger to the health, welfare or safety of the patient or the public.”); 32-1201.01(24) (“Failing or refusing to maintain adequate patient records.”); and 32-1264(A) (“Maintenance of Records”). Respondent was also advised that the aforementioned alleged conduct constituted grounds for disciplinary action, including suspension or revocation of Respondent’s dental license, pursuant to Ariz. Rev. Stat. § 32-1263(A)(1). Respondent was further advised that the Board could recover costs related to the formal administrative hearing under Ariz. Rev. Stat. § 32-1263(N) should he be found to have committed the alleged violation(s).

Respondent’s Answer to the Complaint was timely received by the Board.

Hearing Evidence

The Board called Dr. Anthony Caputo and Dr. Julie Cutler as witnesses. The substantive facts of record are as follows:

Case No. [number redacted]-AO (C.L.)

Respondent is required to maintain adequate treatment records for each patient that include all treatment notes, including clinical examinations, diagnosis and treatment planning, and dental and periodontal charting.

The standard of care requires a dentist to refer a patient with elevated blood pressure, shortness of breath, and history of taking blood medications to a medical provider to initiate any dental treatment. Respondent deviated from the standard of care by failing to provide all of C.L.’s dental records to the Board. This illustrates that Respondent was unable to identify the patient, support the dental diagnosis, justify the dental treatment, accurately document the results, indicate advice and cautionary warnings provided to the patient, and/or provide sufficient information for another dentist to assume continuity of C.L.’s care at any point in the course of dental treatment.

The standard of care also requires a dentist to confer with a patient’s primary healthcare provider prior to beginning extensive tooth extraction.

The standard of care also requires a dentist treating an elderly patient who self-administers nitroglycerine during a dental procedure no less than 3 times, who also experiences shortness of breath at least 3 times for several minutes at a time, to immediately discontinue extraction and call emergency medical services to attend to the patient.

The actual harm in this matter was the death of C.L.

Respondent’s acts and omissions also constitute potential harm to other patients and the public at large due to his failures to recognize an emergent situation.

On June 24, 2022, the Board conducted a formal interview with Respondent. In sum, Respondent shared that he had attempted to obtain patient records for the Board “on several occasions,” but had been unsuccessful, as he had stopped work at the practice 2 weeks after the underlying incident. Respondent recalled that C.L. had not been entirely forthcoming with her cardiovascular history during intake. Per Respondent, the practice had obtained a letter from C.L.’s cardiologist; allegedly providing consent for the proposed dental treatment plan, the whereabouts of which were unknown. Respondent also admitted that he did not know the dental protocol for a patient experiencing or expressing symptoms of angina. Respondent further admitted that when C.L. went into “shock” he did not take her blood pressure, and that there was not a defibrillator in the practice.

On August 05, 2022, the parties entered into an Interim Consent Agreement for Practice Restriction to suspend License No. D008629.

On October 13, 2023, the Board voted to move the matter to formal hearing for revocation, and to consolidate it with Case No. [number redacted] regarding R.R.

Case No. [number redacted] (R.R.)

Respondent’s treatment records for R.R. were inadequate because the following information was not documented:

On March 15, 2021, Respondent did not note a diagnosis or detailed treatment notes for the performed root canal. There is no periodontal evaluation and/or charting for the tooth in R.R.’s patient file.

On April 27, 2021, Respondent did not detail treatment notes for the subsequent extraction and bone graft on R.R.’s tooth.

There is no signed consent form in R.R.’s records regarding his extracted tooth or bone graft.

The standard of care is to provide treatment including, exam, x-ray, medical and dental history, identify any disease(s) or issue(s), provide a diagnosis, and discuss options of treatment and execute procedures to optimize function and oral health to the patient.

The standard of care is to avoid any unwarranted procedure deemed irrelevant to treatment outcome.

Respondent deviated from the standard of care when he failed to recognize the poor prognosis on R.R.’s tooth and performed a root canal on a non-restorable tooth without documenting any periodontics charting, particularly when there was clear periapical radiolucency evident in the x-rays on the tooth.

The actual harm in this matter was suffered an unnecessary root canal, the costs associated with treatment, and post-operative complications.

The potential harm in this matter was Respondent’s failure to document a diagnosis before providing treatment, which could amount to negligence or assault, placed Respondent’s colleagues, R.R., and third party payees at a disadvantage; and Respondent’s failure to obtain informed consent from a patient regarding possible risks, benefits, and alternative treatment options.

On May 12, 2023, the Board voted to move the matter to formal hearing for revocation.

Additional Evidence

On August 31, 2022, the Board provided Respondent notice that C.L.’s case would be reviewed at its public meeting scheduled September 02, 2022. Although the correspondence was mailed to Respondent’s address of record, it was subsequently returned by the United States Postal Service as undeliverable to Respondent. Electronic delivery, however, was successful.

On October 05, 2023, the Board provided Respondent notice that C.L.’s case would be reviewed at its public meeting scheduled October 13, 2023. Electronic delivery was successful.

Closing Argument

In closing, the Board argued that it had sustained its burden of proof in the matter by establishing that Respondent had deviated from the standard of care on multiple occasion and engaged in unprofessional conduct in violation of Ariz. Rev. Stat. §§ 32-1201.01(14), 32-1201.01(24), and 32-1264(A), which resulted in actual and potential harm. As such, the Board requested that a decision be issued recommending revocation of License No. D008629 pursuant to Ariz. Rev. Stat. § 32-1263(A)(1).

CONCLUSIONS OF LAW

The Board has jurisdiction over Respondent and the subject matter in this case.

The Board bears the burden of proof to establish that Respondent committed unprofessional conduct that furnishes cause to discipline his license to practice dentistry in the State of Arizona by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

Pursuant to Ariz. Rev. Stat. § 32-1201(13) “disciplinary action” means regulatory sanctions that are imposed by the board in combination with, or as an alternative to, revocation or suspension of a license and that may include:

(a) Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter.

(b) Imposition of restrictions on the scope of practice.

(d) Imposition of censure or probation requirements best adapted to protect the public welfare, which may include a requirement for restitution to the patient resulting from violations of this chapter or rules adopted under this chapter.

Ariz. Rev. Stat. § 32-1263.01(A) provides that the Board may take any one or a combination of the following disciplinary actions against any person licensed under the chapter:

(1) Revocation of license to practice.

(2) Suspension of license to practice.

(3) Entering a decree of censure, which may require that restitution be made to an aggrieved party.

(4) Issuance of an order fixing a period and terms of probation best adapted to protect the public health and safety and to rehabilitate the licensed person. The order fixing a period and terms of probation may require that restitution be made to the aggrieved party.

(5) Imposition of an administrative penalty in an amount not to exceed two thousand dollars for each violation of this chapter or rules adopted under this chapter.

(6) Imposition of a requirement for restitution of fees to the aggrieved party.

(7) Imposition of restrictions on the scope of practice.

(8) Imposition of peer review and professional education requirements.

(9) Imposition of community service.

Pursuant to Ariz. Rev. Stat. § 32-1263(A)(1) the Board may impose disciplinary action against a dentist for any unprofessional conduct as defined in section 32-1201.01.

Pursuant to Ariz. Rev. Stat. 32-1201.01(4) “unprofessional conduct” includes committing gross malpractice or repeated acts which constitute malpractice.

Pursuant to Ariz. Rev. Stat. 32-1201.01(24) “unprofessional conduct” includes failing or refusing to maintain adequate patient records.

Ariz. Rev. Stat. 32-1264(A) holds that a person who is licensed or certified pursuant to the chapter shall make and maintain legible written records concerning all diagnoses, evaluations and treatments of each patient of record. It further holds that a licensee or certificate holder shall maintain records that are stored or produced electronically in retrievable paper form, including:

1. All treatment notes, including current health history and clinical examinations.

2. Prescription and dispensing information, including all drugs, medicaments and dental materials used for patient care.

3. Diagnosis and treatment planning.

4. Dental and periodontal charting. Specialist charting must include areas of requested care and notation of visual oral examination describing any areas of potential pathology or radiographic irregularities.

5. All radiographs.

The weight of the evidence presented has established by a preponderance of the evidence that the State of Arizona holds all dentists licensed by the Board to the same standard of care. Above all else, the benefit of treatment must outweigh the associated risks. All licensed dentists must apprise themselves of, and be held responsible to, the State’s Dental Practice Act.

The issue in these matters are very straightforward. The tribunal is tasked with determining whether Respondent committed unprofessional conduct and/or deviated from the standard of care based on the evidence presented, and if so, whether Respondent caused potential and/or actual harm to a patient as a result. To that end, the tribunal must determine, if one or more statutory violations occurred whether grounds exist for the Board to discipline Respondent’s license to practice dentistry.

Here, the substantive facts of record are clear.

The Board established by a preponderance of the evidence that the conduct and circumstances described in the foregoing factual analysis constituted unprofessional conduct as defined in Ariz. Rev. Stat. §§ 32-1201.01(14), 32-1201.01(24), and 32-1264(A). The Board also established grounds to take disciplinary action against Respondent’s license pursuant to Ariz. Rev. Stat. § 32-1263(A)(1).

In C.L.’s case, the record reflects that Respondent failed to obtain her health history or coordinate care with her primary physician, failed to obtained her informed consent, commenced treatment after noting her elevated blood pressure, allowed her to self-administer nitroglycerin multiple times during treatment, failed to administer oxygen, failed to identify an emergent situation, left C.L. to attend to other patients during her medical emergency, failed to timely contact emergency medical services, and failed to provide the Board with her complete patient records – all of which deviate from the standard of care and constitute unprofessional conduct. The fact that C.L. died during the course of these events is a factor in aggravation.

In R.R.’s case, the record reflects that Respondent took-over midway during his treatment and abruptly changed the course of the plan without any explanation or justification, and without obtaining the patient’s informed consent. No charting or clinical notes were performed by Respondent. Worse, the record reflects that Respondent knew beforehand, or should have known, that the root canaled tooth had a poor to non-restorable prognosis which rendered crown placement unlikely to succeed. The facts that R.R.’s crown failed less than 24 hours after placement, and Respondent never replied to the related complaint, are factors in aggravation.

At no relevant time was Respondent permitted to act outside the scope of the standard of care or deviate therefrom.

Notably, Respondent’s failure to fully submit to regulation by the Board, including his absence from these proceedings after being afforded additional time to prepare, are additional factors in aggravation. Respondent’s refusal to provide requested records, maintain an updated mailing address, or simply respond to the Board evince his unwillingness to uphold standards of professional practice.

Weighing the gravity of Respondent’s above-captioned conduct against the Board’s interest in protecting the public, the undersigned Administrative Law Judge holds that License No. D008629 must be disciplined.

Because no specific request was levied by the Board, it shall not recover costs related to these proceedings from Respondent under Ariz. Rev. Stat. § 32-1263(N).

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in these matters, License No. D008629, as issued to Thomas A. Endicott, be revoked by the Board.

NOTICE

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 will be five days from the date of that certification.

Done this day, April 09, 2024.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Ryan Edmonson, Executive Director

Board of Dental Examiners, Complainant

1740 W. Adams St., Ste. 2470

Phoenix, AZ 85007

[email redacted]

Seamus Monaghan, Esq., Assistant Attorney General

Office of the Attorney General, Counsel for Complainant

Licensing and Enforcement Section

2005 N. Central Ave.

Phoenix, AZ 85004

[email redacted]

Thomas A. Endicott, DDS, Respondent

427 30th St.

Ogden, UT 84401

[email redacted]

By: OAH Staff