Appeal of Boulard
165 N.H. 300
| N.H. | 2013Background
- Dr. Kevin Boulard, a licensed dentist, held a "moderate sedation — unrestricted" permit and was investigated after a former employee complained his practice was not equipped for a sedation emergency.
- An unannounced March 2012 investigation (investigators not trained in sedation) found an inoperable AED and an emergency kit with missing/expired medications; the Board temporarily suspended the permit pending hearing.
- The petitioner requested and underwent a second, announced investigation by the New Hampshire Anesthesia and Sedation Evaluation Committee (qualified members), which gave a contingent passing grade but noted missing medication/equipment and inadequately trained staff during simulated drills.
- The Board concluded Dr. Boulard committed professional misconduct (failure to maintain operable AED, incomplete/expired emergency meds, and assigning duties to untrained assistants) and indefinitely suspended his sedation permit until compliance and until the Board received and reviewed other practice-related information.
- The Board upheld its suspension after reconsideration; petitioner appealed arguing insufficient evidence, bias/unqualified investigators, need for expert testimony, and that the indefinite suspension (especially conditioning reinstatement on unrelated investigations) was an abuse of discretion.
Issues
| Issue | Boulard's Argument | Board's Argument | Held |
|---|---|---|---|
| Whether evidence supports finding of professional misconduct | Insufficient evidence; Committee’s passing grade undermines misconduct finding | Board relied on Committee’s findings of missing medication and untrained staff — sufficient to support misconduct | Court: Evidence supports finding of misconduct; Board need not adopt Committee’s overall recommendation |
| Whether Board improperly discounted Committee or was biased | Board ignored/failed to credit Committee and evinced bias | Board may accept, reject, or modify investigator recommendations; no evidence of bias | Court: No bias; Board properly considered and weighed Committee report |
| Whether expert testimony was required / Board lacked expertise | Need expert testimony to establish standard of care in sedation practice | Board has specialized competence to evaluate permit-holder conduct; expert testimony not always necessary | Court: Expert testimony not required here; Board competent to decide failures (missing meds, untrained staff) |
| Whether indefinite suspension and conditioning on other investigations was an abuse of discretion | Indefinite suspension and tying reinstatement to unrelated pending investigations is excessive and unjustified | Suspension permissible until petitioner corrects violations and Board reviews compliance; Board argued continued suspension pending other inquiries | Court: Suspension for the identified violations upheld and properly revocable upon compliance; vacated the portion conditioning reinstatement on review of other ongoing investigations |
Key Cases Cited
- Appeal of Beyer, 122 N.H. 934 (1982) (administrative board expertise may obviate need for expert testimony)
- Appeal of Huston, 150 N.H. 410 (2003) (administrative bodies have specialized knowledge to evaluate unprofessional conduct)
- Appeal of Dell, 140 N.H. 484 (1995) (board may accept, reject, or modify hearing officer or investigator recommendations)
- Appeal of Morgan, 144 N.H. 44 (1999) (standard for setting aside administrative sanctions as abuse of discretion)
- Durocher v. Rochester Equine Clinic, 137 N.H. 532 (1993) (negligence may be inferred without expert testimony where matter is within common knowledge)