ALJDEC decisions subject to certification as final
F19-201700175-MP-DEN · Board of Dental Examiners · 2020-12-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of:
Victor E. Trujillo, D.D.S.
Holder of License No. D3864 For the Practice of Dentistry in the State of Arizona
No. F19-[number redacted]-MP-DEN
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: September 21 and 22, 2020
APPEARANCES: David W. Williams, Esq. for Victor E. Trujillo, DDS; Seth T. Hargraves, Esq. for the Arizona State Board of Dental Examiners
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
FINDINGS OF FACT
On December 20, 2018, the Arizona State Board of Dental Examiners (“Board”) issued a Complaint and Notice of Hearing setting the above-captioned matter for hearing on January 24, 2019 at the Office of Administrative Hearings in Phoenix, Arizona. The matter was continued several times and the hearing was conducted on September 21 and 22, 2020.
Through the Complaint and Notice of Hearing, the Board alleges that on November 16, 2013, Respondent Victor E. Trujillo, DDS deviated from the standard of care when removing a patient’s (wisdom) tooth #32 and that he failed to maintain adequate records when removing that tooth and numbers 16 and 17. The patient was fourteen years old in November 2013.
The Board opened its investigation after learning that a malpractice claim related to the matter had been settled. The Board had outside consultant Steven Ingersoll, DDS evaluate the matter; Dr. Ingersoll’s Dental Consultant’s Report and Summary is in evidence as Board Exhibit J.
After receiving Dr. Ingersoll’s Report, the Board requested that Dr. Trujillo participate in a formal interview, which request he declined, opting for this hearing instead.
Dr. Trujillo testified on his own behalf; the Board presented the testimony of its Executive Director Ryan Edmonson and outside consultant Steven Ingersoll, DDS.
The parties also presented deposition testimony of Dr. Trujillo, John W. Dovgan, DDS, Joel S. Berger DDS, MD, and the patient’s mother that was taken in the malpractice matter. Dr. Trujillo also presented comments made at by Board member Howard J. Sorenson, DDS at the Board’s April 6, 2018 meeting.
Dr. Trujillo graduated from the University of California, San Francisco School of Dentistry in 1987 and has been practicing in Arizona since about that time.
Dr. Dovgan is licensed in Arizona and was Dr. Trujillo’s expert witness in the malpractice matter.
Dr. Berger is licensed in California; on April 5, 2014 he performed surgery on the patient at Sharp Memorial Hospital in San Diego California.
Through the Complainant and Notice of Hearing, the Board, relying on Dr. Ingersoll’s opinions, alleges that Dr. Trujillo’s work was deficient in the following ways:
a. The standard of care requires a dentist to avoid traumatic injury to the lingual nerve when performing an extraction of a lower tooth. Respondent deviated from the SOC by failing to avoid traumatic injury to the lingual nerve when he extracted [the patient’s] impacted tooth no. 32. Respondent deviated from the standard of care in following ways: 1) using a straight back incision, rather than a hockey stick style incision; 2) using a high speed rotary instrument to remove bone to the extent of eliminating the crest of the lingual plate and perforating the apical portion of the lingual plate.
b. Respondent’s treatment records were deficient because they lacked: 1) sufficient information supporting the need to extract, such as the location of the patient’s] reported pain and objective findings other than inflammation; 2) sufficient evidence about the surgery performed on November 16, 2013, such as finding of an abscess or soft tissue structure attached to tooth no. 32, which Respondent did not record until several days post-operatively when [the patient’s] mother reported that he was experiencing numbness.
In this case, the patient’s right lingual nerve was transected, which the Board alleges occurred during Dr. Trujillo’s extraction of 32.
On April 5, 2014, Dr. Berger performed exploratory surgery and repaired the patient’s right lingual nerve that had been transected. During his deposition, Dr. Berger gave his opinion that the transection had occurred while tooth 32 was being removed by Dr. Trujillo.
Dr. Trujillo asserts that the Board has misstated the standard of care, and that the appropriate standard of care requires the dentist to use reasonable and prudent steps to avoid injury to the lingual nerve realizing that there always a risk in removing an impacted third molar, and that even if the nerve is injured, there is no violation if it cannot be shown that the dentist was unreasonable in the attempt to remove the molar.
As such, Dr. Trujillo asserts that the Board must show to a reasonable degree of medical probability that Dr. Trujillo took unreasonable actions that damaged the nerve. According to Dr. Trujillo, because the record shows that the nerve may have been damaged in any one of several ways and the Board has not shown specifically how the trauma occurred, it has not shown that he violated the standard of care.
Among the reasons that this matter had been continued was to allow time for Dr. Trujillo to serve on various medical practitioners subpoenas duces tecum issued by the Administrative Law Judge at Dr. Trujillo’s request.
Dr. Trujillo asserts that during the malpractice matter he did not receive all the patient’s records for treatments by other providers, the Board should have assisted him in obtaining these records, and that without these records it is not possible to determine how the patient’s nerve damage occurred.
Dr. Trujillo’s conclusion flows from the facts that the patient was complex and that there are errors or uncertainties in some of the documents in the record. Of particular note is Dr. Trujillo’s contention that on April 5, 2014 Dr. Berger actually performed a Le Fort I procedure and a bilateral split sagittal osteotomy on the patient, and not exploration of the nerve.
Dr. Trujillo also testified that the entire set of records from Arrowhead iSmiles was not provided to the Board. Dr. Trujillo explained that he was not the custodian of records and that the records he provided to the Board in response to its subpoena were all obtained by him during the malpractice litigation.
In November 2013, Dr. Trujillo was working at the Arrowhead iSmiles dental office.
The patient presented on November 9, 2013 and was seen by another dentist who prepared a treatment plan recommending removal of the patient’s three remaining wisdom teeth, numbers 16, 17, and 32.
On November 16, 2013, Dr. Trujillo first met the patient and he reviewed the existing treatment plan and radiograph(s).
Tooth 32 was rotated mesially at 45-degrees and abutting against 31.
Dr. Trujillo’s notes show the chief complaint as wisdom pain; his “observation” was red and inflamed, meaning the tissue around the partially erupted teeth; his “assessment” was operculitis; and his proposed treatment was extraction. Dr. Trujillo testified to the effect that he verified that the patient did need to have the wisdom teeth removed.
Dr. Trujillo testified to the effect that this information is sufficient to show that these conditions applied to all three wisdom teeth, the location of which is known, and that the redness was around all surfaces of 32 except the mesial, which was jammed up to 31.
The patient told Dr. Trujillo that there was pain in all three teeth, but it was worst in 32, which was not recorded in Dr. Trujillo’s records.
On November 16, 2013, Dr. Trujillo discussed with the patient’s mother issues including the fact that tooth 32 was rotated and abutting against 31, which created a risk of damage to the alveolar nerve if the tooth was not removed, and he discussed with her Arrowhead iSmiles’ informed consent form.
Dr. Trujillo did not record that his discussion with the mother had occurred.
The patient and/or his mother signed Arrowhead iSmiles’ informed consent form that included the following risk: “Nerve injury resulting in numbness or tingling ·of the lips, chin, tongue or other soft tissues. This paresthesia usually resolves in six to eight months but could be permanent.”
During his deposition on July 31, 2016, Dr. Berger gave his opinion that transection of the lingual nerve was not an accepted risk during the extraction because this means cutting across an anatomical structure, which is never allowed, and that although the consent form says the patient is consenting to possible nerve injury, that does not include a transection. Dr. Ingersoll agreed with Dr. Berger’s opinion.
On November 16, 2013, Dr. Trujillo removed the patient’s 16, 17, and 32.
Dr. Trujillo testified that his process was: numbing the patient with anesthesia, making a distal buccal incision, moving (or flapping) the tissue back to get access to 31, removing buccal bone and occlusal bone to create proximal space, removing a piece of the mesial side of 32 to section the tooth, using his elevator to separate 32 into pieces, removing those pieces with a plier, and suturing. Dr. Trujillo also wrote a prescription for the patient that was not recorded in his notes, but he thought it may have been in Arrowhead iSmiles’ records that were not provided to the Board.
On removal of 32, Dr. Trujillo saw that there was an abscess on the root; a little sac attached to the roots. After the surgery, Dr. Trujillo told the patient’s mother that there was an infection or an abscess at one of the teeth and that the tooth was difficult to get out. Dr. Trujillo did not include in the patient’s record a reference to the abscess or the difficulty in removing the tooth.
Dr. Ingersoll’s opinion is that an abscess would be unusual considering the patient’s age and that the occurrence of one should have been included in Dr. Trujillo’s records.
Dr. Trujillo testified that he created a distal-buccal incision (distal of 31 and buccal) and then went straight back, but not farther back than the roots, and then he went around 31 just enough to create the flap. Dr. Trujillo’s opinion was that this type of incision was what Dr. Ingersoll was referring to as a “hockey-stick” incision, but he was not really sure what Dr. Ingersoll meant by “hockey stick.”
Dr. Trujillo’s opinion was that he would not have come in contact with the lingual nerve while making the distal-buccal incision because he was on the buccal side, not the lingual.
Dr. Trujillo removed buccal bone and occlusal bone because he saw that he would not have had enough room to use the elevator had he not done so.
In sectioning 32, Dr. Trujillo used the high-speed bur to remove the mesial side coming in from the buccal side, cutting from the bottom, stopping before going completely through the crown, which is a conservative approach.
Dr. Trujillo testified that when he removed the buccal bone and occlusal bone he would not have come in contact with the lingual plate because he stayed on the distal buccal (i.e., in an area away from the lingual plate and nerve).
Dr. Trujillo testified that he knew he did not come into contact with the lingual plate while sectioning 32 because he would have been able to tell the difference between hard enamel and soft bone.
After sectioning 32, Dr. Trujillo used his elevator putting it against the distal buccal angled toward the root and he pushed distally causing 32 to pop right out; he used very little lingual force, and he was surprised how easily it came out.
The surgery took two hours, which Dr. Trujillo did not find to be unusual because the patient had a severe class III malocclusion resulting in a limited opening and he had difficulty getting the patient numb at tooth 32. Dr. Trujillo did not include in his record that there had been difficulty getting 32 numb.
On November 18, 2013, the patient’s mother called the dental office reporting that the patient had numbness on the right side of his tongue.
On November 18, 2013, after receiving the telephone call from the mother, a staff member spoke to Dr. Trujillo who stated that there was a small abscess, which information Dr. Trujillo directed the staff to add to the chart. Dr. Trujillo returned the mother’s call and spoke to her about the patient’s condition.
On November 21, 2013, the patient was seen by Dr. Gibbons at Arrowhead iSmiles and reported numbness on the right side of his tongue.
On December 3, 2013, the patient saw Dr. Gibbons at Arrowhead iSmiles and reported continued numbness on the right side of the tongue. The patient planned to see oral surgeon Reed Day, M.D. for a consultation regarding nerve repair.
On December 3, 2013, Arrowhead iSmiles took an x-ray at the mother’s request, which she made considering the patient’s insurance coverage.
On December 7, 2013, Dr. Trujillo made a chart entry showing that 32 came out with an abscess attached to the roots.
On December 10, 2013, the patient saw Dr. Day whose notes show: a complete anesthesia of right hemi-tongue and that a CT scan showed a slight loss of lingual cortical bone. Dr. Day’s impression was a right lingual nerve injury and he recommended sensory reeducation exercises with follow-up in three months if the problem persisted.
On January 2, 2014, Dr. Berger evaluated the patient, including performing a CT scan; the CT scan demonstrated a defective lingual ridge of 32.
Dr. Berger’s impression on January 2, 2014, was a right lingual nerve injury secondary to extraction of tooth 32. Dr. Berger’s opinion was that the nerve had not been transected, but rather had a neuropraxia type injury, and he recommended testing in four weeks and possible exploration if the condition had not improved.
Dr. Trujillo’s opinion was to effect that Dr. Berger’s January 2, 2014 opinion that the nerve was likely not transected is evidence in support of his position that Dr. Berger actually performed a Le Fort I on the patient on April 5, 2014.
In his deposition testimony, Dr. Berger explained that his initial opinion that the nerve had not been transected was based in part on an assumption that the patient had not been tested for sensation in his tongue after the extraction of 32.
Dr. Berger evaluated patient again on February 18, 2014, including taking another CT scan.
Dr. Trujillo testified that he has never seen the February 18, 2014 CT scan and he considered it to be one of the records that is missing in the case. Dr. Trujillo’s opinion is to the effect that the CT scan has importance because it occurred after his treatment of the patient and before Dr. Berger’s treatment.
Through a letter requesting insurance authorization dated February 18, 2014, Dr. Berger noted that the patient’s chief complaint was loss of sensation in his right lingual nerve and loss of taste, secondary to removal of tooth 32. Retesting had not resulted in any change, which Dr. Berger found indicated a high probability of complete transection. Dr. Berger recommended exploration and possible repair with a nerve graft.
Dr. Berger’s office prepared a request for predetermination or prior authorization for surgery dated February 27, 2014, that shows the diagnosis as facial nerve damage (ICD-9 351.9) and procedures with CPT codes 69720, 64856, 64910, and 648874.
Dr. Trujillo testified that the codes referenced in the February 27, 2014 request are typically used for the ear and hand, and are not the codes applicable to a nerve resection procedure, which he believes supports his theory that the missing records are necessary to see what actually happened.
In a letter dated March 15, 2010 [sic], Dr. Day sought precertification to perform a left [sic] lingual micro-section nerve repair. Dr. Day reported that the patient had a diagnosis of trigeminal nerve injury caused by trauma to the right lingual nerve during an extraction. Dr. Day wrote that he could fix the condition by performing a left [sic] lingual microdissection nerve repair.
Dr. Berger’s office scheduled a surgery to be performed at Sharp Memorial Hospital on April 5, 2014. The scheduling request form shows that the procedure was to be exploration and repair of the left [sic] lingual nerve. On at least one copy of that document, left had been crossed out and replaced with right. The “Yes” box is checked in response to the question of whether the procedure was to diagnose or treat cancer. Dr. Trujillo’s opinion is that this information supports the need to obtain the missing records.
Through a memorandum dated March 24, 2014, Dr. Berger’s office provided Sharp Memorial Hospital with information and a list of instruments and supplies necessary for the patient’s surgery scheduled for April 5, 2014. That memo shows that the procedure was to be an exploration and repair of the left [sic] lingual nerve and included a request for a 30 mm nerve graft.
Dr. Trujillo’s opinion is that the March 24, 2014 supply request is for an allograft, meaning that Dr. Berger knew before the surgery that he was going to use an artificial nerve. He was also of the opinions that: a 30 mm nerve is “huge;” the nerve could have been sewn back together had he (Dr. Trujillo) actually cut it; and that before the surgery, Dr. Berger knew for some reason that he was going to have to replace the whole nerve.
The March 24, 2014 supply request shows the procedure as exploration and repair of left [sic] lingual nerve, which led Dr. Trujillo to believe that in addition to a Le Fort I, Dr. Berger also performed a bilateral split sagittal osteotomy on the patient, which would have required cutting the lower jaw, both right and left, with the cut on the right side being at the location of 32.
A preoperative history prepared by Dr. Berger shows that subsequent to removal of wisdom tooth the patient had numbness in anterior right two-thirds of his tongue and loss of taste; a neurologic exam showed dense anesthesia and the diagnosis was injury to right lingual nerve; and that the patient is admitted for exploration and repair.
Dr. Berger’s operative report shows that the preoperative diagnosis was right lingual nerve injury, that the post-operative diagnosis was transection of the right lingual nerve, and that exploration of the right floor of the mouth and lingual nerve demonstrated a complete transection of right lingual nerve.
In his operative report and in an April 6, 2014 Procedure Note, under “Surgical Findings” Dr. Berger wrote that exploration of the right floor of the mouth and the lingual nerve demonstrated a complete transection of the right lingual nerve with the proximal segment retracted into the pterygomandibular space and the distal segment scarred into the medial wall of the mandibular in the area of the extracted wisdom tooth.
Dr. Trujillo was critical of the nerve-cutting Dr. Berger reported and he questioned how the nerve would be in the pterygomandibular space if it had been cut at 32.
In his deposition, Dr. Berger explained that it was necessary to cut a couple of millimeters off each end of the nerve to expose healthy tissue before reconnecting the ends. Dr. Berger was of the opinion that when a nerve is transected it immediately retracts both proximal- and distal- ends beyond the location of the cut, which location was at tooth 32 in this case.
Dr. Berger’s records included photographs that are ostensibly of the patient on April 5, 2014, but Dr. Trujillo testified to the effect that considering the occlusal decay on tooth 30, it is not the patient, which supports his position that it is necessary to obtain the missing records.
Dr. Berger’s April 6, 2014, discharge summary shows that the patient underwent exploration and repair of the right lingual nerve, and that surgical findings demonstrated a complete transection of the right lingual nerve.
The pathology report dated April 9, 2014, shows that the proximal lingual nerve biopsy revealed tissue changes consistent with traumatic-type neuroma.
Dr. Trujillo acknowledged that the development of neuromas was not his specialty. Dr. Trujillo’s opinions are to the effect that Dr. Berger was looking for a tumor, and that the pathologist’s distal findings show that the patient has a genetic disorder that might have caused the fibrosis that was seen.
Sharp Memorial Hospital’s records include a document printed April 9, 2014, showing the April 5th procedure as a Le Fort I with autologous bone marrow transplant. Just below that entry, the procedure is described as exploration and repair of the right lingual nerve.
Dr. Trujillo points to this document as evidence that the patient may have undergone the La Fort I and had his nerve transected at that time. Dr. Trujillo testified that he had seen a photograph or video of the patient during the malpractice proceedings and his appearance had been altered in a manner consistent with a Le Fort I and a bilateral split sagittal osteotomy. Dr. Trujillo believes that this information supports the need to obtain the missing records.
Dr. Ingersoll acknowledged that the patient was a candidate for the Le Fort I procedure because he had a class III malocclusion, but his opinion was that such a procedure would not result in the transection of the nerve.
The Board asserts that there are no other mentions of a Le Fort I in any of the other hundreds of pages of medical records, including Dr. Berger’s billing records for the April 5, 2014 procedure, and Dr. Trujillo did not identify any other such references. It appears that there are no records referencing the surmised bilateral split sagittal osteotomy.
During his deposition on July 31, 2016, Dr. Berger was asked if he had an opinion as to the cause of the transection of the nerve, to which he replied:
Well, it, obviously, was injured at the time of removal of the wisdom tooth because the patient had no other history of having any other surgery. And basically, it was transected with some type of instrument that was used at the time of surgery that created the trauma to the lingual tissue as well as transected the nerve. So whether it's a rotary instrument or some type of sharp instrument that was used at the time of surgery, I have no knowledge of what was done or how it was done.
Dr. Berger then respondent “yes” to the question of whether it was fair to say that some type of rotary instrument or sharp instrument that was used during the extraction of the tooth was the probable cause of the transection, scar tissue, and neuroma.
In his deposition on August 26, 2016, Dr. Dovgan testified to the effect that he did not know how the nerve was damaged, but he offered a number of possibilities including the removal of the abscess; a piece of coronal material that may have snapped off; the elevator slipping; or the needle used to administer the anesthesia.
Dr. Dovgan effectively acknowledged that he would need to defer to Dr. Berger’s findings given that Dr. Berger conducted the surgery on the patient.
Dr. Dovgan agreed that if Dr. Trujillo had cut the nerve using the bur drill that would not be within the standard of care. Dr. Dovgan was not saying that transecting the nerve with the elevator would be within the standard of care, but he was of the opinion that adverse outcomes can happen during surgery.
In his Consultant’s Report, Dr. Ingersoll provided his opinion that either Dr. Trujillo’s use of a straight incision, rather than a hockey-stick incision, or his use of the bur saw could have caused the trauma to the nerve.
Dr. Ingersoll’s opinion that Dr. Trujillo used a straight incision rather than a hockey-stick incision, was based Dr. Trujillo’s July 29, 2016 deposition testimony, wherein Dr. Trujillo was asked did you use a hockey stick incision and he said no, that he just went straight back with his incision. But the transcript from the deposition shows that Dr. Trujillo had actually been asked two questions: "Okay. Was there a certain design to the incision, like a hockey stick, anything like that? Was it an envelope flap that you created?" And his answer was "No, just like a hockey -- well, no, I went straight back, and then I used my periosteal and pulled everything back. I might have released the PDLs from 31.”
In this matter, Dr. Trujillo testified that he was confused by the two questions and was trying to answer both at once (which testimony was in response to questions that were arguably leading). In both his deposition and in this matter, Dr. Trujillo testified that he made a distal buccal incision, and in this matter he expressed his opinion that this incision was the type Dr. Ingersoll was referring to as a hockey-stick incision.
In this matter, Dr. Ingersoll testified as to his opinion that Dr. Trujillo fell below the standard of care because radiographs and CT scans show a lingual perforation in the area of the extraction site of tooth 32 and that perforation caused a lingual nerve injury. Dr. Ingersoll based his opinion primarily on the radiographs of Drs. Day and Dr. Berger, as well as the CT scans. Dr. Ingersoll’s opinion was to the effect that Dr. Berger’s operative report showed that exploration revealed that the nerve was transected in an area correlating to the loss of lingual bone.
Dr. Trujillo agreed that the abscess or the anesthesia needle could have caused the trauma, but he did not agree that it was caused by a piece of coronal material or his use of the bur saw, and he testified that the elevator had not slipped during the procedure. Dr. Trujillo also expressed the opinion that Dr. Berger may have caused the trauma to the nerve.
Dr. Trujillo could not identify with 51% probability that any one of these potential causes actually did cause trauma to the nerve.
Regarding possible causes for the loss of bone or ways in which the lingual plate could have been perforated, Dr. Trujillo’s opinion was to the effect that the loss of bone on the lingual cortical could be explained by the position of 32 (i.e., rotated 45 degrees mesially) and that either the position of 32 or the abscess could have caused the perforation.
At a Board meeting on April 6, 2018, member Howard J. Sorenson, DDS, stated that three experts had reviewed the patient’s tomographs and they disagreed with Dr. Ingersoll’s conclusion that there was an excessive loss of bone. These three experts were not identified by name. Mr. Edmonson had seen nothing in the Board’s records suggesting that the Board had relied on or consulted any outside experts/consultants other than Dr. Ingersoll.
Dr. Trujillo asked the Board to identify these other experts, because he was of the opinion that they would provide evidence that the lingual plate was not damaged, but these experts were never identified. The Board presented evidence speculating that Dr. Sorenson may have been referring to the experts who testified in the malpractice matter.
The Board requests an Order providing for one year of probation, during which, Dr. Trujillo would be required to complete three hours of continuing education in recordkeeping, six hours of continuing education in oral surgery, and three hours of continuing education in radiographic diagnosis. All of that continuing education to be above and in addition to what would normally be required for license renewal. And, also, that he be required to reimburse the Board for the cost of the hearing.
Dr. Trujillo argues the Board did not meet its burden to show that the alleged violations occurred and as such, the matter should be dismissed. In the alternative, he argues for a non-disciplinary sanction. In support of his position, Dr. Trujillo notes that the events at issue occurred in 2013, that there have been no complaints against him since that time, and that he has had no prior discipline that could be considered an aggravating factor.
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.").
Because the Board found that its investigation was sufficient to merit disciplinary action against Dr. Trujillo, it had authority to request that Dr. Trujillo participate in a formal interview before the Board. Because Dr. Trujillo refused a formal interview, the Board was authorized to issue its Complaint and Notice of Hearing. Ariz. Rev. Stat. § 32-1263.02(G).
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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24. Failing or refusing to maintain adequate patient records.
The preponderance of the evidence shows that Dr. Trujillo committed unprofessional conduct when removing the patient’s tooth 32. Dr. Berger’s medical records show that the patient’s right lingual nerve had been transected prior to Dr. Berger’s exploratory surgery. Dr. Berger’s deposition testimony shows that the probable cause of the transection was the use of the bur or a sharp instrument. Although there are errors in some documents and potential ambiguities in the record, the preponderance of the evidence supports Dr. Berger’s testimony that the patient had not undergone any surgery between the date that Dr. Trujillo removed 32 and Dr. Berger conducted his exploration and repair of the nerve.
It has not been shown by a preponderance of the evidence that Dr. Trujillo used a straight back incision rather than a hockey-stick style incision because the portion of the deposition transcript that Dr. Ingersoll based his opinion on cannot be considered reliable given that Dr. Trujillo was responding to two questions that were asked at the same time.
The preponderance of the evidence shows that Dr. Trujillo violated Ariz. Rev. Stat. sections 32-1264(A)(1) and (A)(4) because he did not record in the patient’s chart that tooth 32 had an abscess when removed.
Because Dr. Trujillo 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). Such discipline includes “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.” Ariz. Rev. Stat. § 32-1263.01(A)(4).
Alternatively, the Board can “issue a nondisciplinary order requiring [Dr. Trujillo] to complete a prescribed number of hours of continuing education in an area or areas prescribed by the board to provide the licensee with the necessary understanding of current developments, skills, procedures or treatment.” Ariz. Rev. Stat. § 32-1263.01(B).
Because Dr. Trujillo 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).
The Board requests a recommendation of one year’s probation, during which Dr. Trujillo would be required to complete three hours of continuing education in recordkeeping, six hours of continuing education in oral surgery, and three hours of continuing education in radiographic diagnosis, which would be in addition to the statutorily required continuing education. This request is consistent with what the Board was proposing before the matter was set for hearing, and appears to be appropriate considering the facts and circumstances of this matter.
It is also appropriate to require Dr. Trujillo to reimburse the Board for the costs of the hearing.
RECOMMENDED ORDER
IT IS ORDERED that Victor E. Trujillo, DDS be placed on probation for one year, during which he must complete three hours of continuing education in recordkeeping, six hours of continuing education in oral surgery, and three hours of continuing education in radiographic diagnosis, which are in addition to the statutorily required continuing education requirements;
IT IS FURTHER ORDERED that Dr. Trujillo 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 7, 2020.
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Ryan Edmonson,
Board of Dental Examiners
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