720 N.E.2d 187 | Ohio Ct. App. | 1998
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *416
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *417
Bartlett's eight-page statement described Sohi applying heavy pressure with his hands over the mouth and nose of children to silence them, placing children in headlocks, choking children, applying a nitrous mask over children's faces so that it left an indentation, threatening children with needles and telling them "to shut up if they ever want to see mommy again." Bradshaw made allegations in her statement similar to those by Bartlett. Neither Bartlett's statement nor Bradshaw's statement contained any patient names. Morgan's statement did include two patient names. Because the allegations at issue involve child victims, we will refer to these patients as patient 1 and patient 2. Morgan specifically alleged that Sohi held patient 1 against the wall and shook him. Morgan alleged that Sohi allowed splattered blood to remain on the file of patient 2. This second allegation does not concern patient treatment and was not a part of the disciplinary proceedings.
As part of its investigation, the Dental Board also hired Stephen Wilson, D.D.S., to examine the statements of Bartlett and Bradshaw and to render a professional opinion on whether Sohi's reported behavior-management techniques departed from the accepted standards of the profession. Wilson found numerous departures.
R.C.
There is no other information about the board's investigation in this record. Additionally, no investigator testified at the administrative hearing. *419
"In accordance with Chapter 119. and Chapter 4715. of the Ohio Revised Code, you are hereby notified that the Ohio State Dental Board intends to determine whether or not to warn, reprimand or otherwise discipline you or to suspend or revoke your license to practice dentistry in Ohio for one or more of the following reasons.
"COUNT 1
"Between the dates of November, 1994, and March, 1995, you have mistreated and abused children in your practice by: grabbing them by the throat and choking; placing anesthetic needle between the patient's eyes and threatening them; holding them up and shaking them; and placing the children in headlocks, and other verbal and/or physical abuse against children.
"Such conduct constitutes a violation of Section
"Pursuant to Chapter 119. of the Ohio Revised Code, you are advised that you are entitled to a hearing on this matter. * * *"
Sohi requested a hearing and demanded more information about the charges, particularly patient names and exact dates of the alleged incidents. In February 1996, he was provided with the sworn statements of Bartlett, Morgan, and Bradshaw that were taken as part of the board's investigation. Morgan's statement included the names of patient 1 and patient 2.
After Sohi received the statements of Bartlett, Bradshaw and Morgan, he continually tried to learn the names of the other patients he allegedly had mistreated. Although Sohi provided the board with access to his files, from the record before us it appears that the board never determined the names of the other patients before the hearing. *420
The state did not present the testimony of any patient victims or their parents. Bartlett, Bradshaw, and Morgan testified to the misconduct they witnessed. For the first time, Bartlett identified the names of three other patient victims. They were referred to as patient 3, patient 4, and patient 5. Wilson also testified as an expert. Although Wilson did testify that, to those not trained in pediatric dentistry, acceptable behavioral-management techniques can appear shocking or harmful, he did find numerous departures from acceptable practice by Sohi.
After hearing all the evidence, McNeil found that Sohi had mistreated and abused his patients. McNeil issued findings of fact and conclusions of law that separated Sohi's conduct into four categories. Specifically, he held that Sohi mistreated and abused his patients by (1) placing hypodermic needles between the eyes of the patients and threatening them, and telling them to "shut up," in conjunction with either the unacceptable use of a needle as a threatening device or the unacceptable technique of telling the child that by behaving the child's parent would be able to return to the room, (2) applying the hand-over-mouth technique in such a way as to deliberately prevent the child from breathing, (3) grabbing patients by the throat and choking them, placing them in headlocks, and restraining them with the use of his forearm under the children's throats, choking them, and (4) holding patient 1 up against the wall of the operatory and shaking him. McNeil found these cited examples of misconduct inconsistent with the acceptable standards of the profession of dentistry in Ohio and in violation of R.C.
After a review of the record, the trial court affirmed the order of the board. From that judgment, Sohi has filed this appeal.
"First Assignment of Error: The trial court erred in finding that the Dental Board had provided to Dr. Sohi a meaningful pre-hearing notice of the charges to be heard at the scheduled disciplinary hearing as required by due process. *422
"Second Assignment of Error: The trial court erred by finding that due process permitted the Dental Board to sanction Dr. Sohi for instances of alleged mistreatment of patients never identified by the Dental Board."
These assignments of error address what process is due to a respondent in an administrative proceeding involving a professional license. They are somewhat interrelated, and we address them at the same time. As they present questions of law, we review them de novo.
In his first assignment of error, Sohi argues that the trial court erred in finding that the Dental Board provided him meaningful prehearing notice of the charges against him. In his second assignment of error, Sohi argues that the trial court erred in finding that he was sanctioned in accordance with due process when he was in fact sanctioned for mistreatment of patients not identified.
An administrative agency such as the Dental Board cannot revoke or suspend a professional license without safeguarding the statutory and due process rights of the respondent. Pursuant to R.C.
In this case, the board's notice advised Sohi that the charge against him was "[p]roviding care that departs from or fails to conform to accepted standards for the profession, whether or not injury to a patient results." The notice stated in further detail that, between certain specified dates, he mistreated and abused children in his practice, and the notice provided specific detail about the nature of the mistreatment and abuse. However, despite all of Sohi's requests for the names of the patients involved, he was only given the names of two patients prior to the hearing. They were contained in the witness statement of Mary Morgan and were referred to at the hearing as patient 1 and patient 2. At the hearing *423 itself, but not before, Bartlett identified the names of three more mistreated patients.
The board prosecuted and sanctioned Sohi for misconduct against patients never identified by name to Sohi before the hearing. To this extent, Sohi's procedural due process rights were violated, as Sohi, who saw approximately fifteen hundred patients during the period in question, was effectively denied the ability to present a defense without this crucial information.10
This holding is supported by the board's own protocol. In every other dental disciplinary case before the board involving patient care, the board had provided the names of the accusing patients in the notice to the dentist under review.11 However, as mentioned above, Sohi was only given the names of patient 1 and patient 2 prior to the hearing. Although the allegations concerning patient 2 were ultimately not pursued by the state, Sohi did have enough information about these two patients in advance of the hearing so that his due process rights as to these patients were not violated.
Because the board's proceedings against Sohi with respect to patient 1 met the requirements of due process, the statutory violation based upon Sohi's misconduct towards patient 1 is upheld. The findings of disciplinary violations related to other patients are vacated because of the due process violations. Thus, the first and second assignments of error are sustained in part.
The board found that Sohi held patient 1 against the wall of the operatory and shook him. This finding was based upon the testimony of Mary Morgan and Victoria Bartlett. Morgan testified at the hearing that she walked into the operatory and found Sohi holding a young boy against the wall and shaking him. She immediately left the room and told Bartlett, who was working at the reception desk, what she had seen. She identified this patient as patient 1 (Sohi did have his name before the hearing) and testified that the boy's father was in the dentist's office but not in the operatory when the misconduct occurred.
Bartlett testified that she heard a child's scream followed by a thud coming from the operatory. As she got up to investigate, she ran into Morgan, who appeared to be very upset. Morgan told her that Sohi had patient 1 up against the wall. Bartlett testified also that the boy's father was in the dentist's office, but not present in the operatory with his child.
Sohi argues that Morgan's and Bartlett's testimony was not credible in light of an affidavit he submitted from the parents of patient 1. They averred that at least one of them was with their son during the entirety of each visit to Sohi's office, and that no mistreatment occurred during these visits. If we assume that this affidavit was considered,12 the trial court must give due deference to the findings of the board with respect to conflicting testimony, and may not substitute its own judgment for the credibility determinations made by the board.13 Simply put, our conclusion is that the hearing examiner and the board apparently believed Sohi's employees on this point.
The trial court did not abuse its discretion in finding the board's decision with regard to patient 1 to be supported by reliable, probative, and substantial evidence. Finding no abuse of discretion, we overrule the third assignment of error, limited to patient 1.14
In his fourth assignment of error, Sohi argues that the Dental Board had no authority to impose sanctions based upon alleged violations of guidelines promulgated by the American Academy of Pediatric Dentistry. We disagree.
The board is statutorily authorized to oversee the licensure of the dental profession in the state of Ohio, including the imposition of sanctions for behavior that departs from the accepted standards of the profession. As indicated before, *425 the board can discipline a dentist for providing dental care that departs from the accepted standards of the profession even if no patient is injured. Therefore, the AAPD guidelines are strong evidence and highly probative of the accepted standards of the profession, and of what constitutes a departure from the standards and a potential statutory violation. While the board did not rely solely on the AAPD guidelines in finding Sohi's behavior with regard to patient 1 inconsistent with the acceptable standards of the profession of dentistry, it was certainly not error to consider them. The fourth assignment of error is overruled.
In his final assignment of error, Sohi argues that the trial court should have vacated the board's order because the board had a financial incentive to impose sanctions against him.
Sohi bases his argument on R.C.
Sohi argues that this statute gives the board a financial interest in the outcome of any disciplinary proceeding so that it will always find against the respondent. This argument fails. Where there is an independent hearing examiner, it is the examiner, not the board, who makes any decision about attorney fees, and the decision is not reviewable by the board. R.C.
Accordingly, the board had no financial incentive to impose sanctions. The fifth assignment of error is overruled. *426
Judgment accordingly.
SUNDERMANN, P.J., and PAINTER, J., concur.
