Gillis v. Dental Board
206 Cal. App. 4th 311
| Cal. Ct. App. | 2012Background
- The Dental Board of California revoked Dr. Errol M. Gillis’s license after a mishandled root canal and failure to respond to postprocedure complaints.
- Gillis, a part‑time endodontic specialist, treated James J. in 2005; a second visit on Sept. 26, 2005 overfilled the tooth No. 20, causing pain and risk of nerve damage.
- Gillis failed to inform James J. of the overfill, did not record the sealer or postprocedure instructions, and later provided inaccurate notes.
- The Board filed a disciplinary action in Sept. 2008, charging multiple counts including negligence, overfilling, failure to note/advise, and unprofessional conduct for not answering calls.
- An ALJ sustained several counts (including overfill, failure to respond, and poor recordkeeping) and the Board revoked Gillis’s license in December 2009.
- Gillis challenged in superior court; the court granted a writ and remanded for reconsideration of penalty, which the Board appealed; the appellate court reversed the writ and affirmed the Board’s disciplinary action.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to return calls constitutes unprofessional conduct | Gillis argues unlisted conduct cannot be punished. | Board contends §1680’s list is nonexclusive and includes such conduct. | Unprofessional conduct may include unlisted acts; Board can discipline for not returning calls. |
| Whether repeated negligence may be based on two acts | Gillis contends two acts are insufficient for repeated negligence. | Board asserts two negligent acts satisfy ‘repeated negligent acts’ under §2234/1670. | Two negligent acts can constitute repeated negligence for purposes of discipline. |
| Whether the Board can impose multiple forms of discipline for the same act | Gillis argues prohibition on multiple forms for the same act. | Board contends the statute lists categories; multiple forms may be imposed for distinct misconduct. | Discipline may include multiple forms based on distinct misconduct; not barred for same act here. |
| Whether remand for penalty re-determination was necessary | Trial court found errors in legal theory warranting remand. | Board argues the ALJ’s findings supported revocation and no remand needed. | No remand necessary; the Board’s penalty‑level findings are supported by substantial evidence. |
| Whether the evidence supports gross negligence and related charges | Gillis challenges the distinctions among negligence, gross negligence, and related counts. | Board presented expert testimony and findings supporting gross negligence and other charges. | Evidence supports gross negligence for the overfill and for failure to respond; other charges are supported. |
Key Cases Cited
- Zabetian v. Medical Bd. of California, 80 Cal.App.4th 462 (Cal. App. 2000) (defines repeated negligent acts as two or more acts)
- Franz v. Board of Medical Examiners, 31 Cal.3d 124 (Cal. 1982) (overarching standard for remand when evidence supports but penalty is harsh)
- James v. Board of Dental Examiners, 172 Cal.App.3d 1096 (Cal. App. 1985) (careful analysis of multiple charges and penalties; per se unprofessional conduct issue)
- Thayer v. Board of Osteopathic Examiners, 157 Cal.App.2d 4 (Cal. App. 1958) (remand when unresolved charges affect penalty where evidence supports findings)
- Strode v. Board of Medical Examiners, 195 Cal.App.2d 291 (Cal. App. 1961) (remand guidance where agency’s findings still support penalty)