July 31, 2012
IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF PATRICK O. BAMGBOYE, D.D.S. LICENSE NO. 22DI02068800 TO PRACTICE DENTISTRY IN THE STATE OF NEW JERSEY.
On appeal from the New Jersey State Board of Dentistry.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 19, 2012
Before Judges Cuff, Lihotz and St. John.
Appellant Patrick O. Bamgboye is a certified pediatric dentist. He appeals from an order of the New Jersey State Board of Dentistry (the Board) suspending his license to practice dentistry for two years, three months of which is an active suspension, and imposing a $10,000 penalty, costs of prosecution, and remedial education. The penalties flow from the death of a six-year-old, multiply-handicapped child during the course of treatment. Appellant contends the record does not support that his conduct was grossly negligent or that there was proof of repetitive negligence. We affirm.
Dr. Bamgboye first treated K.P. in August 2003. At that time, he cleaned her teeth and provided a fluoride treatment. On February 24, 2004, K.P. returned to Dr. Bamgboye for treatment. K.P. suffered from cerebral palsy, a seizure disorder, and several other chronic conditions. She could not speak, walk or control her movements, and required a naso-gastric tube to receive nourishment. On that day, K.P.'s mother informed Dr. Bamgboye that the child had taken prescribed anti-seizure medication. Although six years old, she was the size of an average three-year-old. Due to neurological impairment, she did not function at the intellectual level of a normal six-year-old child.
Her August 2003 chart was not available in February 2004; therefore, Bamgboye asked K.P.'s mother to complete a new medical history chart. On this day, the child's mother noted liver disease.
K.P. presented with multiple dental problems in August 2003 and her dental condition had deteriorated by February 2004. She had multiple cavities and Dr. Bamgboye determined that three of the five teeth to be treated that day required pulpotomies*fn1 and crowns. He utilized a papoose*fn2 because K.P. had difficulty remaining still. He cleaned her teeth, numbed the right side of her mouth with a topical anesthetic, injected her twice with Lidocaine, a local anesthetic, tested for numbness, inserted a rubber dam, and filled cavities in two teeth. Dr. Bamgboye commenced work on the three teeth that required crowns. He then left the treatment room to retrieve a crown for one tooth. K.P. was crying before Dr. Bamgboye left the room and when he returned. Dr. Bamgboye persuaded K.P.'s mother to permit him to continue. As he was preparing the crowns for insertion, K.P.'s lips turned blue and she stopped breathing. Although Dr. Bamgboye and his staff performed CPR on the child, she died in the hospital later that evening. It is undisputed that Dr. Bamgboye did not consult a pediatrician or other physician familiar with K.P.'s medical condition prior to commencing treatment.
On March 3, 2008, the Attorney General of New Jersey filed an administrative complaint with the Board, seeking the suspension or revocation of Dr. Bamgboye's license. The complaint alleged the February 24, 2004 dental treatment of K.P. constituted gross negligence or malpractice, N.J.S.A. 45:1-21c; repeated acts of negligence, N.J.S.A. 45:1-21d; and a violation or failure to comply with record keeping, N.J.S.A. 45:1-21h and N.J.A.C. 13:30-8.7.
The matter was transferred to the Office of Administrative Law (OAL) as a contested case. During the four-day hearing, the Attorney General presented the testimony of Cavan Brunsden, D.D.S., a New Jersey certified pediatric dentist since 1981. Dr. Bamgboye presented the testimony of Stanley Malamed, D.D.S., a diplomat of the American Board of Dental Anesthesiology and a professor at the University of Southern California School of Dentistry, Department of Anesthesia and Medicine.
On May 4, 2010, the Administrative Law Judge (ALJ) filed the Initial Decision, in which he determined the Attorney General failed to prove Dr. Bamgboye acted with gross negligence and recommended the Board dismiss the complaint. In reaching this conclusion, the ALJ found no generally accepted standards of care guided the treatment by dentists of multiply-handicapped children and K.P. was not a high-risk patient. The ALJ did not address the repetitive negligence charge.
The Attorney General filed limited exceptions to the Initial Decision. The Attorney General noted the failure of the ALJ to address the repeated acts of negligence and inadequate record keeping charges, and urged rejection of the recommendation. Following oral argument, the Board modified the ALJ's findings and rejected the Initial Decision. In its oral opinion, the Board found Dr. Bamgboye engaged in repeated acts of negligence and failed to properly maintain records. On September 1, 2010, the Board held a mitigation hearing, during which Dr. Bamgboye testified and submitted three character references and nineteen patient letters.
On December 15, 2010, the Board memorialized its September 1, 2010 oral decision in a written order. It explained its rejection of the ALJ findings regarding the standard of care and the risk classification of the child. In doing so, it expressly adopted the opinion of Dr. Brunsden, the expert presented by the Attorney General. Applying this standard to Dr. Bamgboye's conduct, the Board found repeated acts of negligence by him. The Board concluded that "Dr. Bamgboye's actions taken cumulatively reflect a lack of judgment supporting a determination that he repeatedly deviated from the standard of care by failing to obtain an adequate history, failing to adequately assess the patient's medical condition, and failing to ensure emergency equipment was available prior to initiating treatment."
At the heart of this appeal is whether the record permitted the Board to find that Dr. Bamgboye deviated from accepted standards of care for treatment by a pediatric dentist of a multiply-handicapped, medically-compromised child, and whether the evidence adduced at the hearing permitted the Board to find that Dr. Bamgboye committed repeated acts of negligence. These related issues require an examination of the expert testimony.
Dr. Brunsden is a certified pediatric dentist, who regularly treats autistic, severely disabled and medically-compromised patients. Dr. Brunsden explained "there [are no] particular references or works that are used to train pediatric dentists involved with medically compromised patients." Dr. Brunsden stated, "I have my standards. Many of my colleagues have theirs."
Nonetheless, he relied on the American Association of Pediatric Dentist Handbook of Pediatric Dentistry (The Handbook), as well as his experience, in evaluating Dr. Bamgboye's treatment of K.P. Dr. Brunsden identified The Handbook as the preeminent guide for pediatric dental care created by pediatric dentists "to maintain the level of integrity of professional dental care in pediatric dentistry." The American Association of Pediatric Dentists (AAPD) annually updates these guidelines based on "the accumulated research and representation of the experts . . . ." He also stated The Handbook provides "an acceptable peer group determined, standard of care for prudent dentists who are interested in providing care at the highest level." The peer group consists of "other pediatric dentists, and the entire continuing education system that exists, that's designed to maintain the level of integrity of professional dental care in pediatric dentistry." Additionally, dentists may gain information regarding the standard of care through continuing education and professional publications.
Dr. Brunsden conceded pediatric dentists disagree whether The Handbook provides guidelines or standards of care. He stated The Handbook does not provide a required standard of care that all dentists must follow; however, it does provide a peer determined standard of care "includ[ing] comprehensive patient assessment, health history[,] interview with the parent and then, a determination of the appropriate modality of treatment." The Handbook "is a great source of information that's very valuable" in aiding a dentist in his "obligation to develop . . .
[a] professional standard of care within [his] own guidelines[.]"
Dr. Brunsden explained the standard of care for record keeping for pediatric patients is addressed in a pediatric assessment course during a pediatric dental training program. He stressed the importance of maintaining complete records as "part of the total healthcare of the patient." In fact, a deficient patient record implies the dentist failed to address the missing items.
Dr. Brunsden detailed how he typically proceeds with an initial visit with a medically-compromised client. He then assessed Dr. Bamgboye's treatment of K.P. Dr. Brunsden opined that K.P.'s dental chart contained the necessary information for purposes of treatment. The dental chart recorded that fifteen out of K.P.'s twenty teeth were "significantly decayed," indicative of "very neglected oral hygiene."
Dr. Bamgboye's medical history of K.P., however, was inadequate. Specifically, he failed to record on the medical chart any discussion with the mother: 1) whether K.P. had liver disease; 2) the specifics of K.P.'s December seizure; 3) whether the mother mistakenly checked off "no" for seizures; and 4) whether he had consulted with K.P.'s physician. Based on the missing information, a "comprehensive review of the child's medical history" was not taken, "accurately filled out" or discussed with the child's mother.
Additionally, Dr. Brunsden opined that "arrangements should have been made to consult with a physician to explore further the child's healthcare issues" in order to "proper[ly] determin[e] . . . how to provide the care that she needed." Dr. Brunsden opined that "the vast majority of [dentists] would [have sought] out medical information in a case like this."
Dr. Brunsden opined Dr. Bamgboye failed to properly assess K.P.'s
medical needs because he failed to obtain a complete medical history.
For example, the information that Dr. Brunsden would have obtained
would have aided his classification of K.P. as an ASA III*fn3
patient and guided his decision whether to treat K.P. in the
dental office or in a hospital. Had Dr. Brunsden been unable to reach
K.P.'s physician, he would have provided K.P. with antibiotics and
pain medication, rather than conduct the procedures. Dr. Brunsden
concluded Dr. Bamgboye lacked sufficient supportive information to
conduct the procedures on February 24, 2004, and his conduct was
"negligent[,] . . . a very significant deviation from what would be .
. . the recommended course of treatment with that presenting medical condition
and health history."
Dr. Brunsden also opined that Dr. Bamgboye deviated from pediatric dentistry guidelines by failing to obtain "a comprehensive informed consent, which would include the intended treatment, the alternative to treatment, [and] alternative modalities of delivery of care." Dr. Brunsden explained the deviation was "moderate" rather than gross.
Last, Dr. Brunsden opined that Dr. Bamgboye maintained a "very inadequate medical record to be used in determining the treatment protocol for [K.P.]." Specifically, the record lacked information regarding 1) "an answer to the . . . liver disease"; 2) "the amount and time of the administration of the [seizure medication]"; 3) "information regarding [K.P.'s] general health and medical condition as provided by a physician"; 4) the mother's complaints of K.P.'s pain; 5) K.P.'s congestion, distended stomach, and facial rashes; and 6) K.P.'s use of diapers.
Dr. Malamed testified on behalf of Dr. Bamgboye. He is not a pediatric dentist; however, he has worked as a dental anesthesia provider to many children presenting with medically compromised conditions. Dr. Malamed reviewed the same materials as Dr. Brunsden.
Dr. Malamed opined that Dr. Bamgboye did not deviate from the standard of care for record keeping; however, Dr. Malamed concluded Dr. Bamgboye's chart was missing "some things on the medical history that could be there that are not." For example, Dr. Bamgboye could have documented more thoroughly K.P.'s medical history. Nonetheless, failure to record properly, Dr. Malamed explained, is a "problem" among dentists, who "are notorious for being lousy record keepers." In fact, "the standard of care in" the dental profession is a "record that has minimal documentation of health history and vital signs . . . ."
Dr. Malamed also opined that Dr. Bamgboye properly assessed K.P. and determined to proceed with her treatment without a medical consultation because Dr. Bamgboye obtained K.P.'s medical history, reviewed the medical history and the treatment plan with her mother, conducted a cleaning, and acquiesced to the mother's request to start treatment that day. Dr. Malamed referred to Dr. Bamgboye's conversation with the mother, who stated the child was not currently having seizures and was on medication. Dr. Malamed explained that, although no standard mandates medical consultations, such a course is prudent when the dentist lacks experience with the patient's medical condition or is doubtful as to the patient's ability to cope with the stress of treatment. Moreover, the decision to obtain a medical consultation rests with the treating dentist, here Dr. Bamgboye. Given Dr. Bamgboye's experience with medically compromised pediatric patients, Dr. Malamed opined the decision to proceed without a medical consultation was appropriate.
Although Dr. Malamed agreed that K.P. was an ASA III patient, he opined that Dr. Bamgboye did not deviate from a standard of care with respect to classifying K.P. as a Class II patient. Dr. Malamed, who took part in translating the ASA system to dentistry, explained that it is "meant to be very, very flexible" and classification rests with the treating dentist. Here, the distinction between Class II and III patients was irrelevant because both may receive elective or emergency treatment outside of a hospital.
Finally, Dr. Malamed testified Dr. Bamgboye did not deviate from the standard of care in obtaining informed consent because he obtained a general informed consent, which was the standard in 2004. Dr. Malamed emphasized that the AAPD developed guidelines for informed consent (in addition to record keeping, anesthesia, and patient evaluation) in 2007, which were more detailed than those in 2004.
Our review of agency action is limited. In re Herrmann, 192 N.J. 19, 28 (2007); In re Zahl, 186 N.J. 341, 353 (2006). We restrict our review to three inquiries:
(1) whether the agency's action violates express or implied legislative policies;
(2) whether the record contains substantial evidence to support the findings on which the agency based its action; and
(3) whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made upon a showing of the relevant factors. [R & R Mktg., L.L.C. v. Brown-Forman Corp., 158 N.J. 170, 175 (1999).]
We accord deference to an agency decision particularly when the matter before the agency invokes its special expertise in particular fields, such as medicine and dentistry. Zahl, supra, 186 N.J. at 353; In re Kim, 403 N.J. Super. 378, 384 (App. Div. 2008). That discretion is not without limits and it must be exercised in a manner to permit judicial review. R & R Mktg., supra, 158 N.J. at 178. We will reverse an agency determination if we conclude the agency mistakenly exercised its discretion or misapplied its authority. In re Polk, 90 N.J. 550, 578 (1982).
The Legislature has granted broad authority to the Board to regulate the practice of dentistry in this State. N.J.S.A. 45:6-1 to -72. The Board determines the qualifications of those who may sit for licensure examinations and the format and scope of the licensure examination, N.J.S.A. 45:6-3; standards for continuing education and accreditation of programs, N.J.S.A. 45:6-10.2; regulation of dental clinics, N.J.S.A. 45:6-15.1 to -15.8; and rules and regulations regarding the practice of dentistry, N.J.S.A. 45:6-19 to -21. The Uniform Enforcement Act (UEA), N.J.S.A. 45:1-14 to -27, creates uniform standards for license revocation, suspension and other disciplinary proceedings by professional licensing boards. N.J.S.A. 45:1-14. The UEA works in tandem with N.J.S.A. 45:6-1 to -72, which grants the Board disciplinary authority over dental licensees. N.J.S.A. 45:1-15. The Board may revoke or suspend a license to practice dentistry for gross negligence, N.J.S.A. 45:1-21c, or repeated acts of negligence, N.J.S.A. 45:1-21d.
The Board members' "experience, technical competence, and specialized knowledge . . . may be utilized in the valuation of the evidence[.]" N.J.S.A. 52:14B-10(b). On the other hand, when the Board acts in its quasi-judicial capacity, the members "cannot be silent witnesses as well as judges." N.J. State Bd. Of Optometrists v. Nemitz, 21 N.J. Super. 18, 28 (App. Div. 1952).
An ALJ's factual findings and legal conclusions are not "binding upon [an] agency head, unless otherwise provided by statute." N.J.A.C. 1:1-18.1(c). An agency head reviews an Initial Decision of an ALJ "de novo . . . based on the record" compiled in the OAL. In re Parlow, 192 N.J. Super. 247, 248 (App. Div. 1983).
The standard of proof in a professional disciplinary hearing is preponderance of the evidence. Polk, supra, 90 N.J. at 560. Gross negligence or grossly unprofessional conduct includes conduct which demonstrates a conscious or reckless disregard for the welfare of another. In re Kerlin, 151 N.J. Super. 179, 185 (App. Div. 1977). The Court has found it includes sexual abuse of adolescent patients under the guise of treatment, Polk, supra, 90 N.J. at 574, and dispensation of unprescribed codeine-based cough syrup, In re Suspension of Heller, 73 N.J. 292, 307 (1977). Here, the Board properly recognized that the record did not support a finding that the management of K.P. or the treatment provided to K.P. was grossly negligent. In fact, Dr. Brunsden testified that Dr. Bamgboye provided appropriate dental care to K.P.
We turn to Dr. Bamgboye's argument that the Attorney General failed to establish and demonstrate the existence of a standard of care. We disagree with this contention and determine the evidence adduced at the hearing permitted the Board to identify a standard of care and to find that Dr. Bamgboye deviated from that standard.
The Legislature is not required to enumerate those acts constituting negligence, "since it would be impracticable for [it] to catalogue and specify every act" that would constitute such conduct. Polk, supra, 90 N.J. at 574. Moreover, "[b]asic tort liability concepts are not applicable, nor is there any requirement for the production of expert testimony to establish the standard of care. To the extent that the standard of care becomes relevant and material, it may be supplied by members of the Board . . . ." Kerlin, supra, 151 N.J. Super. at 185.
Nevertheless, an expert in the field may establish the standard of care that is generally recognized in the field. Sanzari v. Rosenfeld, 34 N.J. 128, 135 (1961); Fantini v. Alexander, 172 N.J. Super. 105, 110 (App. Div. 1980). The expert "need not have had personal experience with the situation under investigation to testify to the applicable standard of care." Sanzari, supra, 34 N.J. at 137. Instead, the expert's "knowledge may derive from observations of the methods used by members of the profession or from his study of professional treatises and journals." Ibid.
Dr. Brunsden testified that the standards he identified regarding assessment of a patient's needs, development of a treatment plan, compilation of a full medical history, consultation with a patient's medical provider, and an adequate informed consent were derived from The Handbook. That publication, in turn, provides "an acceptable peer group determined, standard of care for prudent dentists who are interested in providing care at the highest level . . . ." To be sure, Dr. Brunsden referred to his personal practices; however, consideration of his testimony in its entirety permitted the Board to credit his testimony over the testimony of Dr. Malamed. The Board's acceptance of Dr. Brunsden's testimony is also informed by its special expertise. The Board determines not only standards for licensure but also monitors the performance of dentists practicing in this State. It is hardly surprising that the Board rejected the notion that no standards of care guided the practice of pediatric dentistry in this State.
The record also supports the finding that Dr. Bamgboye departed from several accepted standards of dental practice in his care of K.P. Dr. Brunsden opined that Dr. Bamgboye did not conduct an adequate review of the health history of K.P. with her mother or, if he did so, record the results of that review in the child's chart. Dr. Brunsden opined that the anti-seizure medication, the status of her seizure condition, the presence of a naso-gastric tube, and a notation of liver disease counseled a consultation with her medical care provider to determine the treatment plan, including the use of local anesthesia in his office or sedation in a hospital. These omissions also prevented an adequately informed consent by the child's mother to the treatment plan. We, therefore, affirm the December 15, 2010 disciplinary order.