375 S.W.3d 219
Mo. Ct. App.2012Background
- Kerwin, a Missouri-licensed general dentist, treated a two-day-old infant (J.S.) with fever in April 2006 using craniosacral therapy and a vibrating sacral device; J.S. died the next morning from a right cerebral subdural hematoma.
- The Board investigated after a Webster County coroner complaint and audited Kerwin’s continuing education (CE) records for 2002–2004, finding insufficient documentation of 50 hours of Board-approved CE.
- Kerwin represented on renewal that he had 50 CE hours and maintained documentation; the Board renewed his license based on that representation.
- The Board filed a complaint with the Administrative Hearing Commission (AHC) in June 2007 seeking discipline under Missouri statutory grounds; the AHC held in 2009 that Kerwin’s license was subject to discipline.
- The AHC ultimately revoked Kerwin’s license in June 2009 after a hearing, and the circuit court affirmed; Kerwin appealed, asserting multiple grounds to overturn the discipline.
- The central issue is whether the AHC and Board had substantial evidence and proper legal basis to discipline Kerwin for gross deviation from standard of care, professional trust violations, CE incompetence, and misrepresentation in license renewal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Kerwin grossly deviated from the standard of care | Kerwin | Kerwin | denied: substantial evidence supported gross deviation and discipline |
| Whether the Board properly alleged professional trust or misrepresentation | Kerwin | Kerwin | denied: complaint sufficient; evidence supported trust violation and misrepresentation |
| CE requirements and renewal misrepresentation | Kerwin | Kerwin | denied: evidence showed incompetence and fraud in CE submissions |
| Severity of sanction (license revocation) | Kerwin | Kerwin | denied: revocation within Board’s statutory discretion; no abuse of discretion |
Key Cases Cited
- Moore v. Mo. Dental Bd., 311 S.W.3d 298 (Mo.App. W.D.2010) (review of board discipline in licensure actions; deference to AHC on facts)
- Dorman v. State Bd. of Registration for the Healing Arts, 62 S.W.3d 446 (Mo.App. W.D.2001) (AHC credibility and weight of witness testimony; appellate review standard)
- Tendai v. Mo. State Bd. of Registration for the Healing Arts, 161 S.W.3d 358 (Mo. banc 2005) (gross negligence requiring expert evidence; standard of care)
- Koetting v. State Bd. of Nursing, 314 S.W.3d 812 (Mo.App. W.D.2010) (credibility determination belongs to the AHC; not substituting court’s view)
- Holmes v. Mo. Dental Bd., 703 S.W.2d 11 (Mo.App. W.D.1985) (discretion in sanctions and public protection focus)