*1 estoppel. rights Private should not be adjectives.
shunted aside name professorial
As textbook writers have ex
pressed: “Achieving efficiency often process imperatives appel
threatens justice. general
late Stated efficiency appellate sys
risk of prevented proper
tem giving will particulars
heed to the cases.” Justice Appeal, by Carrington, On Professors Mea Rosenberg, 14, page
dor & West Publish Co., mine).
ing (emphasis supplied 1976.* previously
haveWe established the four test
criteria and we should use it as a
polestar, in each case. Gayle NELSON, Appellee, V.
SOUTH DAKOTA STATE BOARD OF
DENTISTRY, Appellant. 16848, 16859.
Nos.
Supreme Court of South Dakota.
Argued May
Decided Jan. J., Henderson, (S.D.1982), The Bench and Bar busi- dis- should realize the economy, expediency senting. ness of efficiency courts McComsey, justice. State v. —it
622
placing over the and mouth of a mask nose percentage of nitrous ox- patient. the controlled; per- higher the the ide can be oxygen, the centage nitrous oxide to of the mix- higher properties the sedation patient A examines a ture. dentist history treatment a medical before obtains usually is adminis- begins. Nitrous oxide pa- unless a notation made tered by file the dentist. tient’s Any Dr. Nelson’s dental assist- one of pa- actually places the mask on the ants Although dispenser. operates tient and the oxide-oxygen mix- level of the nitrous usually to administered deter- ture dentist, by the assistants on mined dosage on occasions increase the some dentist, al- although own A their volition. Welk and Michael S. Thomas J. office, adjoining in or in an ways the room Falls, McKnight, appellee. Sioux proximity in always not stand being patient oxide is admin- when nitrous Gen., Bastían, Deputy Atty. John W. usually monitored istered. Pierre, appellant. by an assistant. STEELE, Judge. Circuit uses nitrous oxide for “con- Dr. Nelson of Den- Dakota State Board The South sedation,” as that term is defined scious (Board) appeals from circuit court tistry 20:43:04:10; is, purposes ARSD reversing in a Board’s final order
judgment both, controlling apprehension, or reverse and disciplinary proceeding. We rendering unconscious. without Board’s final order. reinstate disciplinary proceeding, At the Dr, Nel- witness called was one of Board FACTS AND PROCEDURAL HISTORY assistants. She testified that the as- son’s Nelson) Gayle (Dr. is a li- Dr. Nelson usually placed the nitrous oxide sistants Falls, in Dako- censed dentist Sioux patients; that a dentist was mask on the ta, specializing in the dental treatment always vicinity in the immediate not brought children and adolescents. Board patient; rare occa- assistant on against Dr. Nel- disciplinary proceedings the mixture of the nitrous sions altered January son, alleging between on her own volition and oxygen oxide and 1987, he allowed assistants and November patient. Dr. usually Nelson monitored nitrous oxide administer monitor nitrous oxide can cause such testified that of certain administra- sedation violation nausea, adverse reactions 1988, there were three tive rules. In June stomach, upset vomiting, although and six assistants in Dr. Nelson's dentists problem never encountered a serious has it unclear office. patients. side effects apparently included at the office one dentist and several assistants dur- least Board determined period question. ing the time procedure oxide was a delegated under has nitrous oxide in his 20:43:04:05.01(3), did and that Dr. Nelson practice purposes for sedation for several procedure in violation of the delegate that years. pursuant so He is authorized to do result, As a rule. Nitrous oxide ARSD 26:43:04:12. indefinitely. license oxygen administered mixed with appealed narily Nelson Board’s possessed decision good dentists stand- court, Board, ing engaged type the circuit which reversed practice the same Schramm, holding locality) same similar applies. We (S.D.1987) dispositive further that experts testify be- held *3 presented expert cause Board no about this testimony standard and its violation so that appellate procedure employed court by effectively that the Dr. Nelson can review administering in record. nitrous oxide resulted in unacceptable patient appeals care. Board hearing Board’s of notice in this case contending the circuit court’s decision that stated:
Appeal apply Schramm does not to the of hearing This is held to determine By review, facts of this case. notice of following issues in accordance with Nelson seeks to reverse Board’s decision on 36-6-44(3): SDCL grounds the alternative that Board’s find- practitioner Whether the has in engaged ings fact of and conclusions law are of or permitted performance of unac- arbitrary capricious and are affected ceptable patient by care by himself or by of error law. working auxiliaries under his supervision due to negligent
We hold that the circuit erred in his deliberate or court act or act, acts or failure to-wit: holding Appeal dispos- whether the Schramm practitioner permitted case; dental itive assistants the decision of the Board to administer and/or monitor an- nitrous arbitrary, capricious, was not or affected algesia during period of time from on by error law. January or about 1984 to on or about ISSUE ONE November phrase first of the notice was
WHETHER EXPERT WAS TESTIMONY 36-6-44(3); verbatim recital of the second REQUIRED THAT DR. TO SHOW phrase framed the factual issue. NELSON ENGAGED IN OR PER- 20:43:04:05.01(1)provides: MITTED THE PERFORMANCE OF UNACCEPTABLE Procedures that be delegated. PATIENT CARE? not delegated by Procedures not be Appeal Schramm, supra, a dentist to dental auxiliaries include brought dentist was before Board after (3) following: ... complaints registered by several oth analgesia, except anesthetic alleging er dentists that Dr. Schramm ren inadequate patients. dered treatment to his The issue not whether Nelson was
Board held that in 13 of 15 inade cases negligent procedure followed quate rendered, care had been and Dr. the administration of but Schramm’s license was indefi 20:43:04:05.01(3) whether he violated ARSD nitely. (five expertise Board used its own delegating its administration to dental dentists) seven members are deter alleged assistants. The standard have mining that Dr. Schramm’s care been violated has been set rule and unacceptable. was expert There was no only issues are the construction testimony presented about the standard of and whether Dr. conduct violated community care or that Dr. it; Therefore, negligence is not relevant. negligently Schramm had intentionally not apply to the Schramm violated standard. SDCL facts of this case. 36-6-8.4 authorizes Board to establish com rule, petency standards it had not done ISSUE TWO so. WHETHER THE BOARD’S DECISION The circuit court held that expert testi- AND WAS ARBITRARY CAPRI-
mony necessary to establish a BY CIOUS OR AFFECTED ERROR care or its violation and Dr. OF LAW? appealed. Schramm We held that when competency rule, dispute standards are not set this case involves the con- (that 20:43:04:05.01(3), degree supra. tort standard of skill ordi- of ARSD struction (Ia.1988); Creek meaning Matter Stone of 443 contends 424 N.W.2d Improvements, in the rule is as used Channel “analgesia”
the term
(N.D.1988).
ambiguity should
ambiguous; that
favor;
inter-
Board’s
in his
construed
subject to
rules
Administrative
are
“an-
meaning
of the
of the
pretation
as statutes.
of construction
the same rules
evidence; and
contrary to the
algesia”
Camp,
Forestry
Hartpence v. Youth
arbitrary, capricious or
its decision
(S.D.1982).
law, contrary to SDCL
by error of
affected
1-26-36.
in an
ambiguity
anis
Where there
rule,
give
to the
“analgesia”
effect
agency
a court
construed
promulgation of
of nitrous oxide
agency’s
the administration
intention
include
*4
dosage.
rule,
regardless
object
of the
to the
of
patient,
a
and must look
to
designed
term does not refer
which it is
Nelson asserts
the evil or mischief
and
substance,
of a
but to
remedy
apply
the administration
a
construc
to
and
reasonable
to
there is insensi-
accomplishes
purpose
where
the state of sedation
the
tion which best
loss
consciousness.
bility
to
of
115
McIlmurray,
without
v.
Longo
the rule.
of
prohibit
rule
the
(1982).
He contends that
The
Mich.App.
N.W.2d 701
321
of nitrous
delegation
the administration
of
rule must
determined
purpose of the
be
1)
dosage
the
long
as
as:
whole,
oxide
as other
the rule as a
as well
at
a state of
the level which
oxide is below
subject. Appeal
same
relating to the
rules
achieved,
2)
attending
the
analgesia is
405
Systems,
AT & T Information
of
supervision
direct
the
dentist exercises
(S.D.1987).
required by ARSD
responsibility
full
define a
a
or rule does not
When statute
delegable pro-
20:43:04:05,
deals with
which
according to
term, it should be construed
cedures.
strained, unpracti
accepted usage and a
its
nitrous oxide is
concluded that
The Board
avoided,
cal, or absurd result should be
“an-
analgesic drug, and that
an
2-14-1;
Dept.
Fed. Labor v.
Iowa
SDCL
of
generic
is a
algesia”
rule
Serv., supra.
Job
of
the
of
which includes
administration
rules of construction
With the
therefore,
dosage;
any
the
nitrous oxide
20:43:04:05.01(3).
mind,
ARSD
we examine
a non-del-
of nitrous oxide is
administration
delegation
injec-
“The
prohibits
rule
of
The
procedure.
egable
medication;
any
the
of
administration
tion
administra
of an
construction
anesthetic;
topical
except for
analgesia,
of
fully
of
which is
question
tive rule is a
law
any
the
of blood
removal
deference
by the court without
reviewable
pro-
means;_”
This sentence addresses
agency
the
determination.
to
of
body or
intrusive to the
which are
cedures
Schramm,
Dakota
supra; Permann
It
mandates
involve sedation
both.
D.,
Labor,
pt.
Unemp. Ins.
De
of
procedures, except
perform the
the dentist
(S.D.1987);
Re
Coe v. Bd.
N.W.2d 113
of
topical
of
anesthetic.
the
Wis.,
140 Wis.2d
gents
the Univ.
of
obviously
rule
to
purpose of the
is
(Wisc.App.1987).
versity
course
at least 16 hours or have
argues
Nelson
that because
practice
used nitrous oxide in his
for three
practice
his
dentistry
license
subject
years prior to the effective
of the rule.
date
suspension,
penal
the rules are
in nature
procedures
strictly
and should be
ARSD 20:43:04:05 concerns
construed in his fa
vor. A statute or rule
may
delegated.
penal
At the time of
in nature if
imposed
transgression
a forfeiture is
action
last
rule
sentence
and where
liability
the extent of the
im
delegated
stated: “Procedures
posed
is not measured or limited
act
include
administration of
anes
State,
or omission.
sentence,
Hancock v.
light
Neb.
thetic.” That
considered in
(1983).
HENDERSON, concurs finding that there are skills public and for WUEST, J., STEELE, Judge, for Circuit delegated by a simply not be disqualified. The South to dental auxiliaries. dentist Dentistry upheld its State Board Dakota HENDERSON, (concurring). Justice would, in public and I duty protect Dentistry ordered Board of The State action. things, all their bless Dr. Nelson be license of that the dental length of “indefinite 20:43:04:05.01(3),the rules Under ARSD Further, pay “he all costs time.” from del- absolutely prohibited dentist rein- prescribed and the proceedings egating to administra- dental assistants fee; payment the upon such statement except anes- analgesia tion of rein- Dr. Nelson shall be license of dental thetic. 31, August This was dated stated.” February filed herein on The last brief argued May on
5, 1990. This case was slowly very justice moved appears
It case. facts, than those other
There are some which, opinion, majority expressed Dakota, of South Plaintiff STATE Nearly mentioned. my opinion, should be Appellee, patients were toddlers of Dr. Nelson’s all of these young children. Some very *6 reaction, receiving nit- while had BAILEY, Defendant oxide, by irregu- James is manifested rous Appellant. nausea, breathing, sweating, and a lar face. In flushed or colorless No. office, oxide was often adminis- nitrous checking with ever a child without tered Dakota. Supreme Court rely, A dental assistant would Dr. Nelson. if nitrous to determine upon the Sept. on Briefs Considered And lev- should be administered. 2, 1991. Decided Jan. deter- who would then el Again, a dental assistant mine same? age upon
made determination based of the child. Patients apprehension given oxide before seated and hap- This would
being the dentist. seen example, patient,
pen when previously years and had never old
four Dr. Nel- oxide. administered nitrous
been four operatory had 14 chairs his
son units. with nitrous oxide equipped
themof portable nitrous oxide two
There were backup. aas
units available a rather portrayed
Unfortunately, distinguished from operation as
commercial my of care. professional ultimately became the quest
opinion, resulted, as the
making money which found, “unacceptable uphold- this Board I commend
care.”