ALJDEC

99F-95258-DEN · Board of Dental Examiners · 2000-03-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On February 29, 2000, a hearing was held to determine if disciplinary action should be taken against James H. Howell, D.D.S. (the “Respondent”). The Respondent appeared on his own behalf. The State Board of Dental Examiners (the “Board”) was represented by Assistant Attorney General Melissa Cornelius. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made. FINDINGS OF FACT 1. The Respondent is the holder of License Number 1327 for the practice of dentistry in the State of Arizona. The Respondent currently practices in Bullhead City, Arizona.

Complaint Number 95258 - A.A. 2. On November 1, 1995, the Board received a complaint from Mrs. A. on behalf of her husband, A.A., alleging that the Respondent had prepared an ill-fitting permanent upper and lower bridge for A.A. See Board’s Exhibit 5. This complaint further alleged that the Respondent did not properly treat a resulting infection that required another dentist to subsequently pull several of A.A.’s remaining teeth. Id.

3. Mrs. A. appeared telephonically for the hearing in this matter. Mrs. A. testified that A.A. has poor hearing and has been ill for several years. Mrs. A. testified that she took A.A. to the Respondent’s dental office to fix his teeth in April of 1994. Mrs. A. testified that she agreed to pay $1,500.00 up front to the Respondent with an additional $1,500.00 to be covered by insurance. Mrs. A. testified that she paid the $1,500.00 down payment.

4. Mrs. A. testified that the Respondent prepared and fitted A.A. with a partial and a full bridge. However, Mrs. A. testified that A.A. complained of pain and discomfort. Mrs. A. testified that A.A. had to remove the bridges to eat. Mrs. A. testified that she took A.A. to the Respondent at least three times to correct the bridges. Mrs. A. testified that the Respondent failed to correct the bridges each time.

5. Mrs. A. testified that the Respondent asked her to pay the $1,500.00 balance on the bridges because the insurance company was taking too long to pay the balance. Mrs. A. testified that she felt that she had to pay the $1,500.00 or the Respondent would not correct A.A.’s bridges. Mrs. A. testified that she paid the balance of $1,500.00 in July of 1994. Mrs. A. testified that the insurance company eventually paid the $1,500.00 in September of 1994. However, Mrs. A. testified that she repeatedly tried without success to have the Respondent reimburse her $1,500.00. Mrs. A. further testified that the Respondent failed to return her calls. Mrs. A. testified that it took several weeks before she received the $1,500.00.

6. Mrs. A. testified that beginning in 1995, she attempted to contact the Respondent several times about A.A.’s pain and discomfort resulting from the bridges. Mrs. A. testified that she would always get an answering machine. Mrs. A. testified that she would leave messages but the Respondent never returned her calls. Mrs. A. testified that she even sent a certified letter to the Respondent but the Respondent never accepted the certified letter. See Board’s Exhibit 7.

7. Mrs. A. testified that she ultimately scheduled an appointment for A.A. with Dr. Russell A. Rima, D.D.S. in September of 1995. See Board’s Exhibit 12. Mrs. A. testified that Dr. Rima took x-rays of A.A.’s mouth and found that there was tooth decay and infection under the lower bridge. See Id. at page 5. Mrs. A. testified that Dr. Rima also found cavities under the upper bridge. Mrs. A. testified that she sought a second opinion from Dr. Frank M. Nelson, D.D.S., who confirmed Dr. Rima’s findings. See Board’s Exhibit 13. Mrs. A. testified that Dr. Rima pulled several of A.A.’s teeth and prepared and fitted dentures for him. Mrs. A. testified that A.A. has had no more problems except for some sore spots with the lower dentures.

8. The Respondent testified that he told A.A. to come back on a monthly basis to check his bridges. The Respondent testified that A.A. or Mrs. A. never scheduled another appointment with his office. The Respondent testified that A.A. suffers from dementia and is taking prescribed drugs. The Respondent concluded that A.A. probably forgot to schedule another appointment. The Respondent further testified that the decay that Dr. Rima found under A.A.’s bridges probably occurred after he had treated A.A.

9. Mrs. A. testified that the Respondent never told her to schedule an appointment with the Respondent’s office on a monthly basis. Mrs. A. testified that she sat just outside of the Respondent’s examination room where the Respondent treated A.A. Mrs. A. testified that she could hear everything that the Respondent told her husband. Mrs. A. testified that the Respondent never told A.A. that he had to come back to the Respondent’s office on a monthly basis.

10. Dr. Lawrence Pozil, D.D.S., is a dentist and a consultant for the Board. Dr. Pozil investigates complaints filed by individuals to the Board. Dr. Pozil investigated all of the complaints filed against the Respondent in this matter. Dr. Pozil testified that the Board requires that a certain standard of care be practiced by dentists licensed with the Board. Dr. Pozil testified that this standard of care includes a thorough examination of the mouth (including a medical history), a diagnosis, an adequate treatment plan and adequate work performed by the dentist. Dr. Pozil testified that the Board requires that a dentist thoroughly document the results of the examination, the diagnosis, the treatment and the dental work performed on the patient. Dr. Pozil testified that it very important for the dentist to record a history of the patient’s mouth including the documentation of the patient’s missing and remaining teeth, the patient’s ridges and the patient’s surrounding gum tissue. Dr. Pozil testified that the dentist should perform a periodontal exam to determine if the mouth’s structure is adequate to support the proposed dental work (i.e., bridges).

11. Dr. Pozil testified that the Respondent’s records for A.A. fail to indicate if a periodontal exam was performed on A.A. See Board’s Exhibit 11. Dr. Pozil testified that the records do not show A.A.’s missing teeth. Dr. Pozil also testified that the Respondent’s records show that no x-rays were taken of A.A.’s separate teeth. Dr. Pozil testified that the Respondent only took a panorex x-ray of A.A.’s mouth. Dr. Pozil was critical of a panorex x-ray because a panorex x-ray does not adequately show the bone structure at the front of the mouth.

12. Dr. Pozil testified that the Respondent’s records included an estimate sheet for fees. See Board’s Exhibit 11. Dr. Pozil testified that this estimate sheet was an adequate treatment plan.

13. Dr. Pozil testified that the Respondent performed bridgework on A.A. However, Dr. Pozil testified that the Respondent failed to document what seating material was used in A.A.’s mouth. Dr. Pozil further testified that the Respondent’s records do not indicate if an anesthetic (or what type of anesthetic) was used on A.A. Dr. Pozil testified that this information is important especially in light of the fact that A.A. has a history of heart problems and may have been on medication at the time of the bridgework.

14. Dr. Pozil further testified that the Respondent billed the insurance company for a root canal that the Respondent claimed was performed on A.A.’s tooth #21. See Board’s Exhibit 11. However, Dr. Pozil testified that Dr. Rima’s subsequent x-rays showed that no root canal was performed on A.A.’s tooth # 21. Dr. Pozil testified that the Respondent also billed the insurance company for three fillings that the Respondent claimed were performed on A.A.’s teeth. However, Dr. Pozil testified that the Respondent’s records do not include any documentation for these fillings. Dr. Pozil testified that subsequent bridgework covered these three teeth so it is not possible to confirm the existence of the fillings based on Dr. Rima’s x-rays.

15. Dr. Pozil testified that the Respondent also billed the insurance company for 15 separate crowns. Id. However, Dr. Pozil testified that the Respondent actually performed bridgework on A.A. Dr. Pozil testified that the insurance company pays more on crowns as opposed to bridges. Dr. Pozil testified that the Respondent should have billed for the actual work performed on A.A.

16. Dr. Pozil testified that the Respondent’s poor record keeping and improper billing practices showed unprofessional conduct. Dr. Pozil testified that he does not know if the Respondent’s actions caused or exacerbated the decay found by Dr. Rima under A.A.’s bridges. However, Dr. Pozil testified that the Respondent’s failure to treat A.A.’s pain and discomfort was a danger to the health and welfare of A.A. because A.A. had difficulty eating. Dr. Pozil testified that he could not say with certainty that the Respondent’s actions amounted to gross malpractice.

Complaint Numbers 96361 and 96362 - H.H. and D.H

17. On or about December 12, 1996, H.H. (and his wife D.H.) filed a complaint against the Respondent alleging that the Respondent had failed to refund $1,000.00 after the Respondent had failed to provide properly fitting dentures. See Board’s Exhibit 4.

18. H.H. and D.H. reside in Nevada. H.H. testified that he has had dentures for 35 to 40 years. H.H. testified that he knows how a good set of dentures should feel. H.H. testified that his old set of dentures were years old. H.H. testified that his old dentures felt fine but a black line was forming around the teeth. H.H. testified that he and his wife needed a dentist who could fit them with new dentures before they went on vacation. H.H. testified that the Respondent promised that he could finish the dentures within two weeks. H.H. testified that the Respondent also promised a refund if he could not satisfy H.H. and D.H.

19. H.H. testified that he and the Respondent agreed on a $1,600.00 price for the new dentures for H.H. and D.H. See Board’s Exhibits 3 & 4. H.H. testified that he made a down payment of $500.00 each for his wife and himself. See Board’s Exhibit 4. H.H. testified that the Respondent promised that he could make dentures that were similar to his old dentures.

20. H.H. testified that the Respondent did impressions of his mouth on his second visit to the Respondent’s office. H.H. testified that the Respondent never took any x-rays of his mouth. H.H. testified that he never completed a medical history form for the Respondent.

21. H.H. testified that the Respondent fitted him with preliminary dentures on his third visit to the Respondent’s office. H.H. testified that there was not much to the preliminary dentures. H.H. testified that he did not like the preliminary dentures because the teeth were too big and the configuration was wrong. H.H. testified that the Respondent became upset when he told the Respondent that he did not like the dentures. H.H. testified that the second visit ended poorly. H.H. testified that he had to speak to the Respondent’s receptionist because the Respondent would not speak to him.

22. H.H. testified that he subsequently received a letter from the Respondent. See Board’s Exhibit 1. H.H. testified that he visited the Respondent after receiving the letter. H.H. testified that the Respondent accused him of having a bad attitude. H.H. testified that the Respondent said that he could not continue treating H.H. and D.H. H.H. testified that the Respondent threatened to break his finger. H.H. testified that he was especially sensitive to the Respondent’s threat because he only has one good hand.

23. H.H. testified that the Respondent told him to get out of his office. H.H. testified that the Respondent has a Dr. Jeckel and Mr. Hyde personality. H.H. testified that the Respondent sent him a second letter explaining how to obtain a refund of his $1,000.00 down payment pursuant to their “agreement.” See Board’s Exhibit 2. H.H. testified that there was never any “agreement” with the Respondent except that the Respondent would refund the $1,000.00 if H.H. and D.H. were not satisfied with the dentures. H.H. testified that he did not want anything to do with the Respondent because of his hostility. H.H. testified that he never received his $1,000.00 refund or the new dentures.

24. D.H. is the wife of H.H. She testified that she has had dentures for years. D.H. confirmed that she needed new dentures quickly because she and H.H. were going on a trip. D.H. testified that the Respondent never took x-rays of her mouth. D.H. testified that the Respondent fitted her with wax impressions on her third visit to the Respondent’s office. D.H. testified that she was not satisfied with the wax impressions. D.H. testified that she had a very “sunken “ appearance to her upper lip and mouth.

25. D.H. testified that the verbal altercation between the Respondent and H.H. occurred during her fourth appointment with the Respondent. D.H. confirmed that the Respondent threatened to break her husband’s finger. D.H. testified that the Respondent told H.H. and her to leave the Respondent’s office and to not expect a refund of the $1,000.00. D.H. testified that professional people should not behave that way to a patient. D.H. testified that she did not want to return to the Respondent’s office. D.H. testified that she never received her new dentures from the Respondent.

26. The Respondent testified that H.H. had a bad attitude. The Respondent testified that he threatened to break H.H.’s finger because H.H. was pointing the finger in his face. The Respondent testified that dentures rarely look or feel proper before making adjustments. The Respondent testified that he never had the opportunity to adjust and finish H.H.’s or D.H.’s dentures. The Respondent testified that H.H. and D.H. would have been satisfied with his final products.

27. Dr. Pozil testified that he reviewed the complaints filed by H.H. and D.H. See Board’s Exhibit 4. Dr. Pozil testified that he also reviewed the Respondent’s records that pertained to H.H. and D.H. See Board’s Exhibits & 10. Dr. Pozil testified that the Respondent’s records show that no x- rays were taken of H.H. and D.H. Dr. Pozil testified that the Respondent’s records included no treatment plans or examination results for H.H. and D.H. Dr. Pozil testified that the Respondent’s records further show that D.H.’s medical history form was never signed.

28. Dr. Pozil testified that the Respondent’s poor record keeping and improper billing practices showed unprofessional conduct. Dr. Pozil testified that the Respondent’s actions probably did not pose a danger to the health and welfare of H.H. and D.H. because the dentures did not affect their ability to eat. Dr. Pozil conceded that he could not find fault with the Respondent’s treatment because the Respondent never completed the dentures. Dr. Pozil testified that there definitely was a failure to communicate between the Respondent and H.H. (and D.H.).

Complaint Number 98132 - B.B.

29. On or about April 24, 1998, B.B. filed a Complaint against the Respondent alleging that the treatment she received from the Respondent was unprofessional and unacceptable. See Board’s Exhibit 8. B.B. appeared telephonically for the hearing in this matter.

30. B.B. testified that she contacted the Respondent to perform denture work. B.B. testified that she had two remaining partial natural teeth or “snags” in her mouth. B.B. testified that she has been wearing dentures since the 1960s. B.B. testified that the Respondent attempted to take x- rays of her mouth but the panorex x-ray machine blew a fuse. B.B. testified that the Respondent took no other x-rays after the machine broke.

31. B.B. testified that the Respondent removed two caps from her mouth. B.B. testified that the Respondent never scaled the plaque or cleaned the residue of cement that held the caps in place. B.B. testified that the Respondent planned to make porcelain crowns for the two teeth and then add a “dolar bar” to support her lower partial. B.B. testified that she paid a total of $900.00 in installment payments to the Respondent. B.B. testified that the total agreed upon price for the dental work was $1,898.00. B.B. testified that the Respondent promised that he would refund her money if she was not satisfied.

32. B.B. testified that she visited the Respondent 8 or 9 times altogether. B.B. testified that she was not happy with the porcelain crowns because they did not match the color of the teeth that were used for the dentures. B.B. testified that her upper dentures did not fit correctly. B.B. testified that the upper plate was too long and narrow and that the midline was off center. B.B. testified that the lower dentures were set in a manner that made her look like an English bulldog when she tried to close her mouth. B.B. further testified that the Respondent had placed a temporary soft liner in her lower mouth that became irritable and painful.

33. B.B. testified that she was not satisfied with the Respondent’s work. B.B. testified that she demanded a refund of her money. B.B. testified that the Respondent’s attorney responded by implying that she would receive satisfactory dental care if she paid the balance of her bill. B.B. testified that she does not want any further dealings with the Respondent. B.B. testified that she now has no confidence in dentists.

34. B.B. testified that she ultimately sought the services of another dentist, Bob Baird, D.D.S. See Board’s Exhibit 15. B.B. testified that the Respondent left her two remaining teeth uncovered and unrestored. B.B. testified that she paid Dr. Baird $2,000.00 to cap the two teeth and to perform extensive periodontal surgery. Id.

35. The Respondent testified that he never had the opportunity to complete B.B.’s dentures. The Respondent testified that B.B. would have been satisfied with the final product.

36. Dr. Pozil testified that he reviewed B.B.’s complaint. See Board’s Exhibit 8. Dr. Pozil testified that he also reviewed the Respondent’s records that pertained to B.B. See Board’s Exhibit 14. Dr. Pozil testified that the Respondent’s records fail to show that the Respondent performed a physical examination of B.B.’s mouth. Dr. Pozil testified that the Respondent’s records show (1) no charting of B.B.’s missing teeth, (2) no charting of periodontal scores, (3) no periodontal examination, (4) no x- rays, (5) no charting of the cleaning of B.B.’s two teeth, and (6) a marginally acceptable treatment plan.

37. Dr. Pozil testified that the Respondent’s poor record keeping showed unprofessional conduct. Dr. Pozil testified that the Respondent’s failure to cap B.B.’s two exposed natural teeth posed a danger to the health and welfare of B.B. Dr. Pozil testified that once a dentist begins treatment, the dentist cannot leave the patient in harm’s way even if the patient refuses to pay for the dentist’s services.

38. The Respondent testified that he was diagnosed with Attention Deficit Disorder (“ADD”) in 1994. The Respondent further testified that he has also been diagnosed with Obsessive Compulsive Disorder (“OCD”). The Respondent testified that ADD causes problems for him that include (1) difficulty following instructions, (2) difficulty sustaining attention to tasks, (3) losing things necessary for tasks, and (4) engaging in dangerous activities without considering the consequences. See Respondent’s Exhibit C, page 49. The Respondent testified that ADD makes it difficult for him to keep thorough records. The Respondent also conceded that he has a short temper.

39. John Finch is the Respondent’s son-in-law. Mr. Finch testified that the Respondent can be difficult to get along at times. However, Mr. Finch testified that the Respondent could never hurt a patient.

CONCLUSIONS OF LAW

1. The Board has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A "preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not." Morris K. Udall, Arizona Law of Evidence, §5 (1960). It "is evidence which is of greater weight or more convincing than the 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." Black's Law Dictionary, 1182 (6th ed. 1990).

2. The Board has the authority to investigate complaints filed by members of the public against a dentist licensed with the Board that appear to show the existence of any grounds for disciplinary action. A.R.S. §32-1263.02. The Board also has the authority to invoke disciplinary action against a dentist licensed with the Board. A.R.S. §32-1263. Grounds for disciplinary action include unprofessional conduct by the dentist. A.R.S. §32-1201 and A.R.S. §32-1263(1). Grounds for disciplinary action also include a violation by a dentist of Chapter 11 of Title 32 of the Arizona Revised Statutes or a violation of any rule adopted by the Board. A.R.S. §32-1263(4).

3. The Board has charged the Respondent with unprofessional conduct pursuant to A.R.S. §32-1201(18)(d),(n),(o) and (y) in that the allegations constitute unprofessional conduct by commission and omission. These sections provide: 18. "Unprofessional conduct" means the following acts, whether occurring in this state or elsewhere: * * * s) 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. o) Obtaining a fee by fraud or misrepresentation, or willfully or intentionally filing a fraudulent claim with a third party for services rendered or to be rendered to a patient. * * * (y) Failing or refusing to maintain adequate patient records.

See A.R.S. §32-1201(18). Complaint Number 95258

4. The undersigned Administrative Law Judge concludes that the Board presented insufficient evidence to show that the Respondent committed gross malpractice pursuant to A.R.S. §32-1201(18)(d). Dr. Pozil testified that he could not say with certainty that the Respondent committed gross malpractice. See Finding of Fact #16.

5. The undersigned Administrative Law Judge concludes that the Board presented sufficient evidence showing that the Respondent’s actions constituted unprofessional conduct pursuant to A.R.S. §32-1201(18)(n). Dr. Pozil testified that the Respondent’s failure to treat A.A.’s pain and discomfort was a danger to his health and welfare because A.A. had difficulty eating. See Finding of Fact #16.

6. The undersigned Administrative Law Judge concludes that the Board presented sufficient evidence showing that the Respondent’s actions constituted unprofessional conduct pursuant to A.R.S. §32-1201(18)(o). Dr. Pozil testified that the Respondent’s improper billing practices constituted unprofessional conduct as set forth in Findings of Fact ##14- 16.

7. The undersigned Administrative Law Judge concludes that the Board presented sufficient evidence showing that the Respondent’s actions constituted unprofessional conduct pursuant to A.R.S. §32-1201(18)(y). Dr. Pozil testified that the Respondent’s poor record keeping constituted unprofessional conduct as set forth in Findings of Fact ##10-11, 13, 16.

Complaint Numbers 96361 and 96362

8. The undersigned Administrative Law Judge concludes that the Board presented insufficient evidence showing that the Respondent’s actions constituted unprofessional conduct pursuant to A.R.S. §32-1201(18)(n). Dr. Pozil testified that the Respondent’s treatment (or lack thereof) probably did not pose a danger to the health and welfare of H.H. and D.H. See Finding of Fact #28.

9. The undersigned Administrative Law Judge concludes that the Board presented sufficient evidence showing that the Respondent’s actions constituted unprofessional conduct pursuant to A.R.S. §32-1201(18)(y). Dr. Pozil testified that the Respondent’s poor record keeping constituted unprofessional conduct as set forth in Findings of Fact ##27-28. Complaint Number 98132

10. The undersigned Administrative Law Judge concludes that the Board presented sufficient evidence showing that the Respondent’s actions constituted unprofessional conduct pursuant to A.R.S. §32-1201(18)(n). Dr. Pozil testified that the Respondent’s failure to cap B.B.’s exposed natural teeth posed a danger to her health and welfare because a dentist should never leave a patient in harm’s way even if the patient refuses to pay for the dental services. See Finding of Fact #37.

11. The undersigned Administrative Law Judge concludes that the Board presented insufficient evidence showing that the Respondent’s actions constituted unprofessional conduct pursuant to A.R.S. §32-1201(18)(o). Insufficient evidence was presented showing that the Respondent improperly billed for a cleaning and x-ray.

12. The undersigned Administrative Law Judge concludes that the Board presented sufficient evidence showing that the Respondent’s actions constituted unprofessional conduct pursuant to A.R.S. §32-1201(18)(y). Dr. Pozil testified that the Respondent’s poor record keeping constituted unprofessional conduct as set forth in Findings of Fact ##36-37.

13. Based upon the foregoing, the undersigned Administrative Law Judge concludes that grounds exist to discipline the Respondent’s license pursuant to A.R.S. §32-1263(1) & (4).

14. The Board has the authority to take disciplinary action against a dentist licensed by the Board. A.R.S. §32-1263.01. The Board may take (but is not limited to) the following disciplinary action: A. Revocation of the license; B. Suspension of the license; C. Probation; D. Imposition of an administrative penalty; E. Requiring that restitution be paid to the aggrieved party; and F. Imposition of peer review and professional education requirements.

See A.R.S. §32-1263.01.

15. In the Complaint and Notice of Hearing, dated December 6, 1999, the Board listed the Respondent’s prior violations. However, on January 4, 2000, the Respondent filed a Motion to Strike this portion of the Complaint containing the list of prior violations. The Office of the Attorney General informed the undersigned Administrative Law Judge that the Complaint and Notice of Hearing would be amended to exclude the list of the Respondent’s prior violations. Accordingly, the undersigned Administrative Law Judge will not consider these prior violations in determining the appropriate disciplinary action for the Respondent.

RECOMMENDED DECISION Based upon the foregoing, the undersigned Administrative Law Judge recommends that the Board take the following disciplinary action (commencing on the effective date of this Order) against the Respondent: a. The Respondent’s License Number 1327 be suspended for a period of days; b. The Respondent’s License Number 1327 be placed on probation for a period of 180 days following the aforementioned 90 day suspension; c. The Respondent pay restitution to A.A. in the amount of $1,500.00; d. The Respondent pay restitution to H.H. and D.H. in the amount of $1,000.00; e. The Respondent pay restitution to B.B. in the amount of $900.00; f. The Respondent pay an administrative penalty of $500.00 to the Board; and g. The Respondent attend a Board approved professional education class on proper record keeping.

Done this day, March 21, 2000.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of March, 2000, to:

Julie Chapko Board of Dental Examiners ATTN: Lorraine Brown 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