ALJDEC

99F-94242-DEN-res · Board of Dental Examiners · 1999-09-14

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on September 13, 1999, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. For all purposes herein the Board of Dental Examiners will be referred to as the “Board”, and Dr. Dan Olson, D.D.S. will be referred to as “Respondent.” APPEARANCES For the Board: Assistant Attorney General, Melissa Cornelius For Respondent: No Appearance

PRELIMINARY FINDINGS On August 11, 1999, the Board filed an Administrative First Amended Complaint and Hearing Notice (“Complaint”) against Respondent alleging violations of A.R.S. §32-1201(18)(d), (n), (t), (w), (x) and (y), which if found to be true will constitute grounds for discipline of Respondent’s license to practice dentistry pursuant to the provisions of A.R.S. §32-1263(1) and (4), and A.R.S. §12-1263.01.C. The Respondent has failed to file an answer to the Complaint and the matter was forwarded to the Office of Administrative Hearings for assignment of an Administrative Law Judge. At the time scheduled for the hearing the Respondent failed to appear to present testimony and argument in his defense, despite the hearing being delayed for 15 minutes to accommodate a late arrival. Pursuant to the Complaint, the Board elected to proceed with the hearing for a determination of findings and conclusions of law. The Board presented the testimony of former patients of Respondent, whose names will remain confidential and will be referred to simply by their respective initials. Testimony was also presented from Dr. Howard G. Hansen, D.D.S., Dr. Lawrence Pozil, D.D.S., as well as Drs. Todd Sick and Tim Taylor, the latter two being dentists formerly in the employ of Respondent. The Board offered and had admitted into evidence 35 exhibits. Official notice is taken of the statutes and rules governing the practice of dentistry in Arizona that were in effect at all times material to this complaint and proceeding.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: The Board is the state agency charged with regulating the practice of dentistry pursuant to Chapter 11 of the Arizona Revised Statutes. Respondent, Dan A. Olson, is now and, except for a six month suspension, was at all material times a licensed dentist in the State of Arizona, having been issued license number D 2632. Respondent last known primary address is 6712 E. Broadway, Ste. A-3, Mesa, Arizona 85206. On December 18, 1995, the Board entered an Order suspending Respondent’s dental license for a period of six months in an attempt to resolve specific complaints filed against Respondent in complaint numbers 92013, 91108, 91227, 93256, 95131, and 94006. Board Ex. 7. The suspension of license was to commence on December 18, 1995 and terminate on or about June 17, 1996. In addition, the Order required Respondent, inter alia, to comply with certain other provisions with respect to the individual complaints filed, as follows: e. Complaint No. 92013: Attend 14 hours of continuing education in denture construction. f. Complaint No. 92227: Attend 14 hours of continuing education in prosthetics. g. Complaint No. 93256: Pay an administrative penalty of $1,000, and attend 14 hours of continuing education in prosthetics. h. Complaint No. 95131: Pay an administrative penalty of $4,000, and attend 24 hours of continuing education in crown and bridge. i. Complaint No. 94006: Pay an administrative penalty of $2,000, and attend 12 hours of continuing education in crown and bridge. Respondent has failed to comply with the requirements and provisions of the foregoing Order, in particular with regard to each of the provisions set forth in Finding No. 4. There is no evidence to substantiate that Respondent has attended the required number of hours of continuing education and, further, the evidence establishes that Respondent has failed to pay the administrative penalties in the full sum of $7,000.00. The testimony of Dr. Todd Sick and Dr. Tim Taylor, who were dentists in the employ of Respondent during the period of time his license was under suspension, clearly establishes that Respondent failed to comply with the suspension order and practiced dentistry by seeing and treating patients periodically throughout the suspension period. In the Board’s complaint number 97028, which reflects a complaint filed by patient B.G., a subpoena for the records of this patient was mailed to Respondent on or about February 24, 1997. Board’s Ex. 9. This subpoena required that the records be delivered to the Board with 14 days of receipt of the subpoena. Respondent failed to timely respond to this subpoena and delivered the patient records on May 20, 1997. Id. As a result, the Board initiated a combined complaint under number 97272 alleging: a) noncompliance with subpoena; b) practicing dentistry without a license; c) fraud and misrepresentation; and, d) patient abandonment. An investigative interview was scheduled for October 17, 1997 which Respondent failed to attend. See Board’s Ex. 10. The Board thereafter confirmed the allegations contained in the investigative interview notice in complaint 97272 and consolidated it with complaint 97028 for the instant hearing. It is found on the basis of the evidence of record that the allegations contained in complaint number 97028, as further reflected in complaint number 97272 have been established as true. Board Exs. 9, 10, 11, 12, and 13. On or about January 15, 1997, the Board received a complaint against Respondent from patient J.B. asserting inadequate treatment for a root canal and crown. The Board issued a subpoena to Respondent for the patient record’s of J.B. requiring the usual 14 day period for compliance. The evidence establishes that Respondent received the subpoena on or about February 21, 1997, however, Respondent failed to timely respond to this subpoena and delivered the records to the Board on May 20, 1997. Board’s Ex. 14. On or about August 8, 1998, the Board received a complaint against Respondent from patient J.W. asserting that Respondent extracted a wisdom tooth without consent and thereafter failed to prescribe antibiotics for a resulting infection. The Board, under complaint 98306, issued a subpoena to Respondent for the patient record’s of J.W. requiring the usual 14 day period for compliance. Board’s Ex. 15. The evidence establishes that Respondent received the subpoena on or about September 3, 1998, however, Respondent failed to respond to this subpoena and the Board, as of the date of the hearing, has not received the subpoenaed records. It is found on the basis of the record that Respondent has failed to respond to the subpoena thereby preventing the Board from adequately making a determination as to the veracity of J.W.’s complaint. Patient J.W. testified at the hearing and confirmed the allegations contained in his complaint and that he continues to this date to experience pain and discomfort as a result of Respondent’s treatment of him. On or about February 26, 1999, the Board received a complaint against Respondent filed by patient S.S. asserting that Respondent constructed an improperly fitting removable denture. The Board, under complaint 99077, issued a subpoena to Respondent for the patient record’s of J.W. requiring the usual 14 day period for compliance. Board’s Ex. 16. The evidence establishes that Respondent received the subpoena on or about March 8, 1999, however, Respondent failed to respond to this subpoena and the Board, as of the date of the hearing, has not received the subpoenaed records. It is found on the basis of the record that Respondent has failed to respond to the subpoena thereby preventing the Board from adequately making a determination as to the veracity of S.S.’s complaint. Patient S.S. testified at the hearing and confirmed the allegations contained in her complaint and that she continues to this date to experience discomfort and ill-fitting dentures as a result of Respondent’s treatment of her. On or about March 29, 1999, the Board received a complaint against Respondent filed by patient V.L. asserting that Respondent provided an improperly fitting removable denture. The Board, under complaint 99108, issued a subpoena to Respondent for the patient record’s of J.W. requiring the usual 14 day period for compliance. Board’s Ex. 17. The evidence establishes that Respondent received the subpoena on or about April 5, 1999, however, Respondent failed to respond to this subpoena and the Board, as of the date of the hearing, has not received the subpoenaed records. It is found on the basis of the record that Respondent has failed to respond to the subpoena thereby preventing the Board from adequately making a determination as to the veracity of V.L.’s complaint. Based upon Respondent’s noncompliance with the subpoenas in complaints 99077 and 99108, the Board initiated a new complaint 99225 against Respondent alleging such concompliance and forwarded this complaint for formal hearing. Board Ex. 18, 19 and 20. It is found on the basis of the evidence of record that the allegations contained complaint 99225 have been established as true. On or about September 7, 1994, the Board received a complaint against Respondent from patient A.T. asserting inadequate, improper and unprofessional treatment for a root canal that resulted in the perforation of the furcation of the abutting tooth number 3. Board Ex. 21. The Board opened complaint 94247 and issued a subpoena to Respondent for the patient record’s of A.T. requiring the usual 14 day period for compliance. The evidence establishes that Respondent received the subpoena on or about September 17, 1994, however, Respondent failed to timely respond to this subpoena and delivered the records to the Board on January 30, 1997. Board’s Ex. 22. The Board set complaint 94272 for an investigative interview for November 16, 1994, with proper notification to Respondent via certified mail, but Respondent failed to attend. Board Exs. 23, 24, and 27. A panel of the Board interviewed patient A.T. and determined that Respondent’s entire course of treatment was inadequate and unprofessional requiring patient A.T. to receive the more extreme treatment of tooth extraction which, but for Respondent’s conduct, would not have been necessary or required. On or about November 6, 1995, the Board received a complaint against Respondent from patient C.W. asserting improper and unprofessional treatment by Respondent in that he ground off certain of her lower teeth without an informed consent. Board Ex. 1 and 2 . The Board opened complaint 95264 and issued a subpoena to Respondent for the patient record’s of C.W. requiring the usual 14 day period for compliance. Board Ex. 31. The evidence establishes that Respondent received the subpoena on or about November 15, 1994, however, Respondent failed to respond to this subpoena. The Board set complaint 95264 for an investigative interview for February 7, 1996, with proper notification to Respondent via certified mail, but Respondent failed to attend. Board Ex. 32. A panel of the Board interviewed patient A.T. and determined that Respondent’s entire course of treatment was improper and unprofessional requiring patient C.W. to receive a more extreme othodontic treatment which, but for Respondent’s conduct, would not have been necessary or required. Patient C.W. testified at the hearing and confirmed the allegations contained in her complaint and that she is under the care and treatment of an othodontist as a result of Respondent’s treatment of her. All complaints noted in the foregoing findings have been voted by the Board to be forwarded for formal hearing and are the subject matter of the instant hearing.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The Complainant has brought this complaint and accordingly bears the burden of proving by a preponderance of the evidence that the allegations contained therein are true. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985), (the standard of proof is that of the “preponderance of evidence.”) In the Complaint, the Board has charged Respondent with violating A.R.S. §32-1201(d), (n), (t) citing A.R.S. §32-1263.01, (w), (x), and (y) in that the allegations constitute unprofessional conduct by commission and omission. These sections provide: 4. "Unprofessional conduct" means the following acts, whether occurring in this state or elsewhere: * * * e) Gross malpractice, or repeated acts constituting malpractice. * * * n) Any conduct or practice which does or would constitute a danger to the health, welfare or safety of the patient or the public. * * * t) Violating or attempting to violate, directly or indirectly, or assisting or abetting the violation of or conspiring to violate any of the provisions of this chapter or any rule adopted by the board. * * * w) Failing to comply with a final board order, including an order of censure or probation. (x) Failing to comply with a board subpoena in a timely manner.

(y) Failing or refusing to maintain adequate patient records.

The Board has met its burden of proof in this case. Firstly, the evidence of record establishes by a preponderance of evidence that Respondent has failed to comply with the final Board Order dated December 18, 1995 by failing to pay the administrative penalties, by failing to attend continuing education courses, and by practicing dentistry while his license was under suspension. Consequently, the Board has proved multiple violations of A.R.S. §32-1201(w) and (t), specifically, A.R.S. §32- 1263.01.C. Secondly, the evidence of record establishes that Respondent has failed to timely respond to fourteen (14) lawfully issued subpoenas; has practiced dentistry in a manner well below acceptable industry standards of practice; has practiced dentistry in a manner that constitutes a danger to the health, welfare and safety of the patients he has treated and cared for; has committed acts that without dispute constitutes repeated malpractice, if not gross malpractice; and, has demonstrated a callous disregard for his patients by failing or refusing to maintain proper and adequate patient records. Consequently, the Board has proved multiple violations of A.R.S. §32-1201(d), (n), (w), (x), and (y). Having concluded that Respondent violated the provisions of the Arizona Revised Statutes, as above set forth, Respondent is thereby subject to disciplinary action by the Board. The question remains as to what penalty is appropriate under the circumstances of this case. A.R.S. §32-1263.01 enumerates the available penalties that may be imposed for the violations found to have been committed by Respondent. Such penalties include suspension, revocation, imposition of an administrative fine, placement of the license on probation, restricting the authorized scope of practice, or a decree requiring the payment of restitution to aggrieved parties. In the previous disciplinary proceeding, the Board took actions which were designed to rehabilitate the Respondent. These actions clearly have not had the desired effect. In fact, Respondent’s conduct has become even more egregious as evidenced by at least seven other unresolved complaints. It is clear that the imposition of further fines, additional continuing education, or suspension of license would be ineffective given Respondent’s conduct under and disregard of the previous final Board Order. It becomes patently clear that Respondent has a disdain for following legally promulgated laws and regulations, and when his total course of conduct is examined in light of outstanding orders and subpoenas, it is evident that a more stringent penalty is required at this time. Respondent has had more than ample opportunity to rehabilitate himself and his practice of dentistry, but his continuing refusal to be cooperative and compliant with the laws and rules necessary for the protection of the health, safety and welfare of the general public demonstrates that he is not a person that should remain a licensed dentist.

RECOMMENDED ORDER Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Board of Dental Examiners enter a final Order finding that Respondent has violated the laws as charged in the First Amended Complaint and revoking Respondent’s license to practice dentistry in the State of Arizona.

DONE AND ENTERED this day, September 15, 1999.

______________________________________ Neal H. Jordan Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Board of Dental Examiners Ms. Julie Chapko 5060 North 19th Avenue, #406 ATTN: Michelle Smith Phoenix, AZ 85015

By ___________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826