On appeal from the New Jersey State Board of Dentistry.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...