The Other Side: When the Board Contacts Dentists

Marietta, GA, attorneyMelvinGoldstein, JD, has represented many clients before the Georgia Board of Dentistry. He offers some tips to keep in mind when dealing with a Board complaint:

Generally, the dentist will receive his or her first notification that a complaint has been filed when the Board sends a letter requesting records on a certain patient or sends an investigator to visit. There is no other official notification that a complaint has been made. Additionally, the Board does not inform the dentist who has made a complaint. That information is confidential.

Under the law, the Board and its investigators have subpoena power and may examine any written document or other material relating to the fitness of a dentist. The Board and its agents also have the right to examine the physical premises of a dental practice O.C.G.A. 43-1 1-47(h)(1).

In a good number of cases, the Board invites a dentist to a meeting with an investigative panel consisting of several Board members for an investigative interview. While the dentist is notified of the patient involved (if the case involves patient treatment) and the general nature of the complaint (i.e., treatment rendered to a patient, criminal conviction, misconduct, disciplinary action by another state agency) the Board does not inform the dentist of the specific allegations contained in the complaint. Therefore, in most cases, the dentist will appear for an informal interview but not know the specific concerns that may be addressed by the committee members.

Of all the complaints received by the Georgia Board of Dentistry, a very small number ever proceed to a formal hearing (see more on that below). Many complaints are found to be without merit. In other cases, alleged violations are settled by a consent order. That occurs after the Board and the dentists attorney negotiate a resolution of the case. A consent order resolution may require the dentist to pay a fine or satisfy some other penalty, including completing continuing education hours. Although a consent order decision is reached without a formal hearing, the order is final and may not be appealed. Consent orders become a part of the public record once final, and the existence of that order is posted on the Board's Web site. If the matter is not resolved by a consent order and a formal hearing is requested, the existence of a Notice of Hearing is also posted on the website.

The Georgia Administrative Procedure Act, O.C.G.A. Ch. 50-13 governs formal Board hearings. Those proceedings are initiated by a notice of hearing which advises the dentist what the charges are against him or her as well as the statutes and rules that he or she is alleged to have violated. An administrative law judge employed by the Office of State Administrative Hearings conducts the formal hearings. An Assistant Attorney General represents the Board and presents the Board's evidence to the administrative law judge. Of course, the dentist has a right to have legal counsel represent him or her and present evidence on their behalf. The administrative law judge is obligated to apply the rules of evidence in a civil non-jury matter O.C.G.A. 50-13-17. After the evidence is presented, the administrative law judge will issue an initial decision that contains the findings of fact, conclusions of law, and a recommended disposition of the case O.C.G.A. 50-13-17.

After the initial legal decision, either the Board or the dentist can move for review of the same by the Board by filing a motion for review within 30 days O.C.G.A. 50-13-17. If neither party files for Board review, the decision of the administrative law judge becomes the decision of the Board by operation of law. If the dentist is dissatisfied with the Board's decision, he or she may file for judicial review of the final decision under the Administrative Procedure Act O.C.G.A. 50-13-19. However, all judicial reviews of the Board's actions must be held in the Superior Court of the county of domicile of the Board, currently Bibb County O.C.G.A. 43-11-47(f).

In my experience, the majority of complaints filed by patients with the Board against dentists deal with quality of care issues. In a sense, that can include poor record keeping or improper prescribing but most frequently deals with the treatment rendered. The best way to avoid a Board investigation is to know the rules and laws of dental practice in Georgia, and to practice within those laws and rules.

Mr. Goldstein is a former administrative law judge for the office of state administrative hearings, and former assistant attorney general for Georgia. He maintains a private legal practice in Marietta, GA, and can be reached at 770-425-4277.

This article appeared in the June, 2003 Journal of the Georgia Dental Association.