In Re Hawkins

194 S.E.2d 540 (1973) 17 N.C. App. 378

In the Matter of Dr. Reginald A. HAWKINS.
In the Matter of Dr. John P. STINSON.
In the Matter of Dr. George T. NASH.

No. 7226SC348.

Court of Appeals of North Carolina.

February 21, 1973. Certiorari Denied and Appeal Dismissed April 30, 1973.

Patton, Starnes & Thompson, by Thomas M. Starnes, Morganton, for North Carolina State Board of Dental Examiners.

Chambers, Stein, Ferguson & Lanning, by J. LeVonne Chambers, Charlotte, for respondents appellants.

Certiorari Denied and Appeal Dismissed by Supreme Court April 30, 1973.

MORRIS, Judge.

Respondents bring forward 13 assignments of error based on 117 exceptions. All assignments of error are common to all three respondents.

Assignments of error Nos. 1 and 13 are addressed to the alleged lack of impartiality of the Board of Dental Examiners. Incorporated in respondents' "request for hearing and response to notice" was a motion "that the hearing be held before an impartial board, tribunal or committee, selected pursuant to the laws of the State of North Carolina and without regard to race, color or national origin". The Board denied the motion "for the reason that the North Carolina State Board of Dental Examiners is a lawfully and constitutionally organized agency of the State of North Carolina and is the sole lawful body or agency having jurisdiction of the subject matter of this proceeding."

Although respondents contend that the statute under which this proceeding was brought and conducted is unconstitutional, they do concede the authority given by statute to the Board to conduct the hearing. They urge that they are entitled to a hearing before a fair and impartial group. We certainly are in accord, nor does the Board challenge the correctness of this position. The Board does, however, deny that this right was denied respondents. Respondents contend that the Board was biased from the very beginning to the very end of the proceeding and that prejudice resulted to respondents not only in the weighing of the evidence by the Board but in the institution of the proceeding and in the disposition made by the Board based on the findings. Respondent Hawkins had been active as a plaintiff in suits challenging the alleged discriminatory practices of the North Carolina Dental Society and Board of Dental Examiners and the Charlotte-Mecklenburg Board of Education. A white dentist was among those against whom discrepancies were listed by the sixman committee, but the reviewing committee found that there were no discrepancies. The members of the Board were selected by vote of the members of the North Carolina Dental Society. These circumstances, say the respondents "demonstrate that the board did not act as a disinterested and impartial body in instituting these proceedings nor could it act as a fair and impartial tribunal to conduct the hearings and to render a disposition of the matter." We are not willing, as respondents apparently would have us do, to say that a mere allegation and statement that prejudice exists is sufficient proof that the proceedings were conducted with a lack of impartiality and fairness. In their brief, respondents point to no evidence in the record indicating bias or partiality, nor does our study of the record reveal any. It is true that prior to the suit of respondent Hawkins against the North Carolina Dental Society [Hawkins v. North Carolina Dental Society, 355 F.2d 718 (4th Cir. 1966)], the members of the Board of Dental Examiners were elected by the members of the North Carolina Dental Society and that no black dentist was a member of that Society. However, in 1961, G.S. § 90-22 was amended to provide that members of the Board of Dental Examiners shall be elected in an election conducted by the Board "in which every person licensed to practice dentistry in North Carolina and residing in North Carolina shall be entitled to vote". G.S. § 90-22(b). The statute further provides that each year there shall be elected two members for three-year terms. Nominations are made by a written petition signed by not less than ten dentists licensed to practice in North Carolina and filed with the Board within the time provided by G.S. § 90-22(c)(4). Dr. Hawkins testified that he became a member of the North Carolina Dental Society in May 1966, prior to the time of his participation in the ESEA program resulting in the charges against him. He further testified that he had voted for candidates for the Board of Dental Examiners, that he had never been a candidate for leection to the Board, but that he had attempted to become a candidate in 1961 and in 1966 at the June meetings of the Old North State Dental Society. He testified: "I could have found a hundred who were willing to endorse me but because of the difficulty and the costs involved and looking at practical politics, I was deterred from seeking that course. Other black dentists deterred me." The members of the Board were elected by ballots cast by all licensed dentists in North Carolina who cared to vote—not by the North Carolina Dental Society. We find no evidence in the record before us which would indicate any prejudice or bias on the part of any member of the Board toward any of the appellants by reason of the suit brought against the Dental Society or for any other reason.

The proceeding from beginning to end was conducted fairly and impartially. Mr. James T. Burch, who is black, was employed by the Charlotte-Mecklenburg Board of Education and was Director of ESEA activities in 1966. Under his supervision a letter was sent by the Board of Education to all dentists practicing in the Charlotte-Mecklenburg area asking that the addressee advise as to their desire to participate in a program of dental treatment of medically indigent children during the summer of 1966, funds for the program having been made available under the Elementary and Secondary Education Act (Federal). The respondents, with some 33 other dentists, indicated an interest. The program was fully administered by and under the control of the Charlotte-Mecklenburg Board of Education with the cooperation of the Charlotte-Mecklenburg Health Department. Upon the conclusion of the program of dental treatment, Mr. Burch was advised by an associate working with the program that some of the bills appeared to be excessive. Mr. Burch communicated this information to Dr. Craig Phillips. Dr. Phillips conferred with Dr. Luby Sherrill, Dental Director of the Health Department, and Dr. Camp, Medical Director of the Health Department. Dr. Sherrill and one or more assistants conducted a preliminary investigation and evaluation. They discovered instances of substandard dentistry and discrepancies between treatment apparently rendered and treatment reflected on some of the statements submitted. This was reported by Mr. Burch to Dr. Phillips who, in turn, transmitted the report. Both the State Department of Public Instruction and the Federal Office of Education advised that problems of administration and evaluation of the program were local problems. Dr. Phillips then requested Dr. Homer Guion, President of the North Carolina Dental Society, to appoint a qualified review committee of qualified dentists to investigate the matter further. This was done. The committee was composed of six local dentists, two of whom were black. Mr. Burch met with the committee as a representative of the Board of Education. Mr. Burch assigned numbers to the participating dentists and their statements and records. Evidence from committee members was that never at any time did any member of this committee know the name of any doctor whose work they were reviewing. The records were kept locked up by Mr. Burch and no one saw them. They did not know any names when their report was submitted. One member of the committee testified that he did not know any names of the doctors involved until he read it in the newspaper. The committee members convened at Central Piedmont College on or about 6 October 1966 where they clinically examined all of the children who had been treated in the program whom Mr. Burch could locate in the school system and have transported to the College. On the same day X rays were made of the teeth of the children who were examined. The chart and X ray of each child was marked with his or her name and an identifying number. Mr. Burch assigned each participating dentist a number. That number was placed in one corner on the outside of the envelope which contained the chart, X ray and statement which pertained to that child. Each time the committee met for joint review, Mr. Burch was present and at the close of the meeting took possession of all the envelopes and retained them in his possession until the next meeting. The committee decided upon those items of substandard dentistry which they would label a discrepancy. There were five discrepancies listed by them. The committee examined 308 of the 601 patients who had been treated by private dentists. The committee reported to Dr. Guion who submitted their report to Dr. Phillips by letter dated 27 October 1966. Thereafter Dr. Phillips conferred several times with each of the respondents with their counsel, and agreement was reached with respect to the amount of payment to be made for the services of each respondent. This concluded the matter insofar as the Board of Education was concerned. On 21 December 1966, the Board of Dental Examiners, by subpoena duly served, obtained all of the records, X rays, reports and related documents pertaining to all the dentists who had participated in the program. Thereafter the Board requested three experts to review the report of the six-man committee, the postoperative X rays made at the College, and all other documents relating to the four dentists reported as having discrepancies. These three experts, two of whom were black, were Dr. Clifford M. Sturdevant, Dr. Herman E. Gaskins, and Dr. Fred C. Fielder. None of them was a resident of Charlotte. Each was a professor of operative dentistry at a recognized school of dentistry. This review committee reviewed the report of the six-man committee, examined all records pertaining to the four dentists charged with discrepancies, clinically examined 13 of the children in question, and checked random samples of the records of dentists who had not been charged with discrepancies. Their initial report was submitted on 21 February 1967. They exonerated one dentist who had been charged with two discrepancies by the six-man committee. As to respondent Hawkins, they verified 25 of the 38 discrepancies reported by the six-man committee. As to respondent Stinson, they verified 10 of 19 discrepancies reported by the six-man committee. As to respondent Nash, they verified 20 of the 33 discrepancies reported by the six-man committee. The Board, after full hearing, entered its orders finding 13 discrepancies as to Dr. Hawkins, seven as to Dr. Stinson, and 18 as to Dr. Nash. Whenever there appeared any doubt as to whether any charged discrepancy was a discrepancy, the charge was dismissed by the Board. So it appears that no charge was sustained unless it received the unanimous approval of the six-man committee, the review committee, and the Board of Dental Examiners.

The two committees utilized in the procedure totaled nine dentists. Four of them were black. The Board required complete unanimity of opinion in order to include an alleged discrepancy in its findings of fact and conclusions of law. We cannot conceive of a fairer procedure than was employed here. The respondents were given the benefit of every doubt all the way through. We perceive no bias, no prejudice, and no partiality.

Assignments of error Nos. 9, 12 and 13 encompass appellants' contention that the Board erred in imposing more severe sentences on remand and the court erred in affirming. Appellants urge that the alleged increased penalties violate the rights of respondents as secured to them by the Fourteenth Amendment to the Constitution of the United States and Article I, Section 19, North Carolina Constitution.

G.S. § 90-41, in effect at the time of this proceeding, provided that when one is found guilty of acts violative of the statute, "the Board may revoke the license of such person, or may suspend the license of such person for such period of time as, in the judgment of the said Board, will be commensurate with the offense committed. . ."

The Board, in its orders of 30 July 1968, ordered the suspension of each respondent's license to practice dentistry in North Carolina, subject to conditions imposed of pursuing courses of study. The Superior Court entered an order on 20 March 1971 setting aside that portion of each order upon the ground that the Board, under G. S. § 90-41, had the authority only to revoke or suspend a license and had no authority to impose conditions. Whether the Board had that authority is not before us. We note that the 1971 General Assembly rewrote G.S. § 90-41 to give the Board authority, in addition to revocation and suspension, to "[i]nvoke such other disciplinary measures, censure, or probative terms against a licensee as it deems fit and proper."

Respondents contend that North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969), is applicable. We do not agree. In Pearce, the Court was concerned with the constitutional limitations upon the imposition of a more severe punishment after conviction for the same offense upon retrial. The Court held that neither the double jeopardy provision nor the equal protection clause imposes an absolute bar to a more severe sentence upon reconviction but that "[d]ue process of law, then, requires that vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives after a new trial." We see no factual similarity in Pearce and the case sub judice. We have no appeal resulting in a new trial. We have here only the remand for the entry of a proper judgment within the authority of the Board. As appellee points out in its brief, the court set aside that portion of the judgment as void not because it was tainted by some error prejudicial to respondents but because the court determined that the Board did not have the legal authority to enter an order of that type. Nor can we say that the order upon remand imposed a more severe penalty. In the case of Dr. Hawkins the suspension was for 12 months; as to Dr. Nash, 18 months; and as to Dr. Stinson, 60 days. However, in the original order of the Board, the suspension in each case could have resulted in permanent suspension or revocation had respondents not complied with the conditions imposed. We hold that the orders entered upon remand do not constitute a deprivation of rights under the Constitution of the United States or the North Carolina Constitution.

By assignment of error No. 6 the respondents contend that the court erred in failing to dismiss this proceeding because of the alleged vagueness and indefiniteness of the statute. Respondents apparently complain of the language "has been guilty of malpractice . . . or has been guilty of willful neglect in the practice of dentistry . . . or has been guilty of any other unprofessional conduct in the practice of dentistry . . ." We agree with respondents that they are entitled to notice of the conduct which might warrant suspension or revocation. We do not agree that this language is too vague and indefinite to give notice. It is certainly not such that "men of common intelligence must necessarily guess at its meaning." Coates v. Cincinnati, 402 U.S. 611, 614, 91 S. Ct. 1686, 1688, 29 L. Ed. 2d 214, 217 (1971); Connally v. General Construction Co., 269 U.S. 385, 391, 46 S. Ct. 126, 127, 70 L. Ed. 322, 328 (1926).

The whole purpose and tenor of Article 2, Chapter 90, of the General Statutes is to protect the public against unprofessional, improper, unauthorized, and unqualified practice of dentistry. The goal is to secure to the people the services of competent, trustworthy practitioners. The licensing by the State, granted only after certain standards of proficiency are met, amounts to the recognition by the State of the licensee as a qualified dentist. The continued holding of the license is taken by the public as indication that those standards are being maintained. The object of both granting and revoking a license is the same —to exclude the incompetent or unscrupulous from the practice of dentistry.

Webster's Third New International Dictionary (1968) defines "malpractice" as, "a dereliction from professional duty whether intentional, criminal, or merely negligent by one rendering professional services that results in injury, loss, or damage to the recipient of those services or to those entitled to rely upon them or that affects the public interest adversely."

In Hazelwood v. Adams, 245 N.C. 398, 95 S.E.2d 917 (1957), Justice Higgins said:

"One who holds himself out to practice dentistry, by implication agrees to bring to his patient's case a fair, reasonable and competent degree of skill and to apply that skill with ordinary care and diligence in the exercise of his best judgment." (p. 401, 95 S.E.2d p. 919.)

The phrase "willful neglect" is certainly a well-known phrase and we cannot perceive that any uncertainty as to its meaning could exist among the members of the dental profession, those to whom the statute applies. The clear meaning of the phrase as applied to the practice of dentistry is a deliberate purpose not to discharge some duty necessary to the proper treatment of the patient.

It is true that the statute does not set out seriatim incidences of unprofessional conduct for which license revocation would lie. In Reyburn v. Minnesota State Board of Optometry, 247 Minn. 520, 78 N.W.2d 351 (1956), the Court defined "unprofessional conduct" as "conduct which violates those standards of professional behavior which through professional experience have become established, by the consensus of the expert opinion of the members, as reasonably necessary for the protection of the public interest." (pp. 523-524, 78 N. W.2d p. 355.)

In Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), the Court had before it a statute authorizing the revocation of license to practice medicine for "immoral, unprofessional or dishonorable conduct". There the Court said:

"It would indeed be difficult, not to say impractical, in carrying out the purpose of the act, for the legislature to list each and every specific act or course of conduct which might constitute such unprofessional conduct of a disqualifying nature. Nor does any such failure leave the statute subject to attack on grounds of vagueness or indefiniteness. Our statute makes no attempt to delineate what acts are included in the terms immoral or dishonorable conduct, which are also made grounds for revocation. The determination whether by common judgment certain conduct is disqualifying is left to the sound discretion of the board." (pp. 453-454, 436 P.2d p. 833.)

Statutes which authorize revocation for unprofessional conduct, grossly immoral conduct, incompetency, and other general terms have been held valid in the majority of jurisdictions notwithstanding their generality. For discussion and authorities see Brinkley v. Hassig, 83 F.2d 351, 355 (10th Cir. 1936); annot., 79 A.L.R. 323 et seq. (1932); 61 Am.Jur., Physicians, Surgeons, § 46, pp. 169-170.

The terms used in our statutes have a well-defined meaning both in the law and the dental profession and are entirely sufficient to give respondents notice of the conduct which would warrant suspension or revocation of their licenses. We hold that the applicable phraseology of G.S. § 90-41 is not unconstitutionally vague and indefinite.

Respondents next contend that the proceedings should have been dismissed because the Board lacked jurisdiction over the respondents and the work they performed in the federally financed 1966 summer program out of which the charges arose. This contention is untenable. Respondents rely on the following provision of G.S. § 90-29:

"The following practices, acts, and operations, however, shall be exempt from the provisions of this article:

. . . . .

(3) The practice of dentistry in the discharge of their official duties by dentists in the United States army, the United States navy, the United States public health service, the United States veterans bureau, or other federal agency."

To say the respondents were "in the discharge of their official duties" as employees of a federal agency is simply belying the plain and uncontradicted facts in the record. The record reveals that the respondents were all private practitioners, that they indicated their desire to participate in a program to treat indigent children for their dental needs during the summer of 1966, that the children to be treated had already been screened through the cooperation of the Health Department and dentists employed to do the screening, that the funds for the work were furnished by the Federal Government but the program was administered totally by the Charlotte-Mecklenburg Board of Education through its Director of ESEA activities, that each participating dentist submitted a bill to the Charlotte-Mecklenburg Board of Education for each patient treated, that the services performed were performed by appointment in each dentist's office, where he customarily practiced his profession as a private practitioner. Mr. Burch, the Director of the ESEA program for the Board of Education, testified that after the evaluation of the work had been done, the Board sought advice from the Office of Education in Washington and "[t]hey in turn turned it back to us and said it was a local responsibility in terms of the administration of the program and in terms of the evaluation of the program . . ." At no time were the participating dentists discharging any official duties as dentists for any federal agency. This assignment of error is overruled.

By assignments of error Nos. 3, 4, 10 and 11, respondents bring forward 70 exceptions to the admission or exclusion of evidence. We do not deem it necessary to set out and discuss these exceptions seriatim, nor do we discuss the question of whether each of these assignments of error presents but a single question for review. Nye v. Development Co., 10 N.C.App. 676, 179 S.E.2d 795 (1971), cert. denied 278 N. C. 702, 181 S.E.2d 603 (1971). Suffice it to say that we have examined each of these exceptions and we find no error sufficiently prejudicial to warrant a new trial.

By assignment of error No. 2 respondents contend that error was committed in admitting evidence and making findings with respect to charges brought to the attention of the respondents for the first time. The assignment embraces 15 exceptions. Eight of the exceptions relate to one patient of Dr. Nash. Close examination of the record reveals that the discrepancies included in findings of the Board are substantially the same as the discrepancies listed in the notice to Dr. Nash. This patient was one of 18 patients treated by Dr. Nash with respect to whom both committees and the Board found discrepancies. We have carefully examined all these 15 exceptions, and we find that the findings and the notice are substantially the same, or that the charges with respect to that exception were eliminated from consideration, or that the charges to which the exceptions related were not included in the findings of the Board. This assignment is overruled.

By respondents' remaining assignments of error (Nos. 5, 8 and 13), they contend that the Board and the court erred in failing to dismiss the charges because of the insufficiency of the evidence. Respondents do not contend that the findings of the Board are not supported by competent evidence. This candor is commendable. They do seem to take the position that the Superior Court is to weigh the evidence and make its own independent determination of the matters in dispute as in the case of consent reference. Board of Dental Examiners v. Grady, 268 N.C. 541, 151 S.E.2d 25 (1966). It is true that at the time of the appeal in Grady G.S. § 90-41 required the matter on appeal from the Board of Dental Examiners to be heard in the superior court as in the case of consent references. However the 1967 General Assembly amended G.S. § 90-41 and that proviso was deleted. The General Assembly of 1967 included the North Carolina State Board of Dental Examiners in G.S. § 150-9, and the scope of review of the Board's decisions is covered by G.S. § 150-27. This scope of review was discussed by Justice Parker (later C. J.) in In Re Berman, 245 N.C. 612, 97 S.E.2d 232 (1957), where he wrote:

"G.S. 150-27 sets forth the scope of review by the Superior Court of the Board's decision, and states that the Judge shall sit without a jury and may affirm the decision of the agency, or remand the case for further proceedings, or may reverse or modify the decision if substantial rights of a person may have been prejudiced because the administrative findings, inferences, conclusions, or decisions are unsupported by competent, material and substantial evidence in view of the entire record as submitted. The administrative findings of fact made by the State Board of Opticians, if supported by competent, material and substantial evidence in view of the entire record, are conclusive upon a reviewing court, and not within the scope of its reviewing powers. Baker v. Varser, 240 N.C. 260, 82 S.E.2d 90; 42 Am.Jur., Public Administrative Law, Sec. 211, where great numbers of cases from State and Federal Courts are cited." (pp. 616-617, 97 S.E.2d p. 235.)

In view of respondents' position, we deem it unnecessary to set out the evidence. Suffice it to say that from our study of this voluminous record we are convinced that every finding of fact entered by the Board was supported by competent, material, and substantial evidence (not disputed by respondents) and that the findings of fact are more than sufficient to support the conclusions of law and judgments thereon.

Both respondents and the Board have been most capably represented at all levels of this proceeding.

Affirmed.

PARKER and VAUGHN, JJ., concur.