COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia
JOHN DOE, D.D.S.
MEMORANDUM OPINION * BY
v. Record No. 0298-00-1 JUDGE WILLIAM H. HODGES
OCTOBER 31, 2000
VIRGINIA BOARD OF DENTISTRY
FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
AND COUNTY OF JAMES CITY
Samuel T. Powell, III, Judge
James J. Knicely (Dwight G. Rudd; Knicely &
Associates, P.C., on briefs), for appellant.
Howard M. Casway, Assistant Attorney General
(Mark L. Earley, Attorney General; Ashley L.
Taylor, Jr., Deputy Attorney General; Jane D.
Hickey, Senior Assistant Attorney General,
on brief), for appellee.
John Doe, D.D.S. (appellant) appeals a decision of the
circuit court affirming an order of the Virginia Board of
Dentistry ("the Board") reprimanding appellant for violating
certain statutes and regulations during the treatment of a
patient. Appellant argues the trial court erred in: (1)
affirming the Board's pre-hearing distribution of evidence to the
Board members and affirming the Board's refusal to exclude
irrelevant and prejudicial evidence; (2) affirming the Board's
statement of particulars and allowing the Board to make findings
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
on offenses not charged; (3) affirming the Board's improper
exclusion of evidence; (4) finding that the record contained
substantial evidence to support the Board's decision; and (5)
affirming the involvement of the Board's counsel in the Board's
deliberations. We find that the Board did not provide appellant
with an appropriate statement of particulars and erred in making
findings on an offense for which the Board did not charge
appellant. Therefore, we reverse and dismiss the case. Because
we reverse and dismiss the case on this issue, we need not address
appellant's remaining four issues.
BACKGROUND
On February 11, 1998, the Board sent appellant a letter
informing him that a special conference committee would hold an
informal conference pursuant to Code §§ 9-6.14:11 and
54.1-2400(10) to review allegations that appellant had violated
Code §§ 54.1-2706(A)(5), -2706(A)(9), -2706(A)(10), 18 VAC
60-20-150(B)(5) and 18 VAC 60-20–170(4). The letter alleged:
On or about March 4, 1997, Patient [A]
presented to you with Tooth #7 broken. You
failed to properly evaluate this patient, to
include radiographs; and recommended a
treatment plan of extraction of Teeth # 7
through #10 and placement of upper and lower
partials without discussing other treatment
options. On or about March 17, 1997, this
patient was evaluated by another dentist who
opined that your treatment plan was
unnecessary.
On March 27, 1998, the special conference committee met and
determined the allegations against appellant were founded. The
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committee concluded appellant had violated the cited Code
sections. On April 10, 1998, the committee issued an order
imposing a reprimand on appellant. The committee found:
Appellant failed to properly evaluate
[Patient A], to include taking radiographs,
and recommended a treatment plan of
extraction of Teeth #7 through #10 and
placement of upper and lower partials
without discussing other treatment options.
He caused a cast metal framework to be
constructed without said proper evaluation.
On May 8, 1998, appellant sent a letter to the executive
secretary of the Board objecting to the "substantive
conclusions" of the order. Appellant also objected to the order
because it did "not provide sufficient factual findings to
establish each of the alleged violations." Appellant requested
that the committee reconsider its decision and "replace the
generalized findings of fact with specific factual findings that
support each conclusion of law." In the event that the
committee was unwilling to reconsider its decision, appellant
requested that the Board provide him with "the particular
factual allegations that the Board believes establish each of
the five alleged separate violations of law so that [appellant]
[could] prepare his defense as to each such violation before the
full Board." The committee refused to amend the order.
Appellant appealed the order and proceeded to a formal hearing
before the Board.
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On May 19, 1998, appellant requested that the Board provide
him with "specific factual allegations as to the manner in which
he violated" each of the statutes and regulations cited by the
committee. Appellant also requested identification of the
"specific Code provision or Board regulation he [wa]s charged
with violating under Code § 54.1-2706(A)(9) and 18 VAC
60-20-170(4)."
On June 4, 1998, the Board issued a notice of hearing. The
statement of particulars stated as follows:
The Board alleges that [appellant] has
violated [Code] §[§] 54.1-2706(A)(5),
[-2706(A)](9) and [-2706(A)](10) . . . and
18 VAC 60-20-150(B)(5) and [18 VAC]
60-20-170(4) . . . in that:
On or about March 4, 1997, Patient A
presented to [appellant] with Tooth #7
broken. [Appellant] failed to properly
evaluate this patient, to include taking
radiographs, and recommended a treatment
plan of extraction of Teeth #7 through #10
and placement of upper and lower partials
without discussing other treatment options.
He caused a cast metal framework to be
constructed without said proper evaluation.
On or about March 17, 1997, this patient was
evaluated by another dentist who opined that
Tooth # 7 could be repaired and that
[appellant]'s treatment plan was
unnecessary.
Thus, the Board's statement of particulars was essentially
identical to the facts provided in the notice of informal
hearing, with the exception that the Board's statement included
a sentence concerning the construction of a cast metal
framework.
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On June 18, 1998, appellant filed a Motion to Strike the
Statement of Particulars and/or Dismiss the Complaint on the
grounds that the statement of particulars contained "conclusory
allegations that [appellant] violated three statutory provisions
and two regulations of the Board without sufficient factual
specificity . . . so that it was impossible for [appellant] to
determine what specific conduct the Board alleges he engaged in
as to violate the respective alleged violations of law."
Appellant further contended the statement of particulars, by
citing the "catch-all" provisions of Code §§ 54.1-2706(A)(9) and
18 VAC 60-20-170(4), did not specify which laws or regulations
appellant allegedly violated. Thus, appellant was unable to
determine the violations with which he was charged or the
conduct that resulted in the alleged violations.
The Board denied the motion to strike and scheduled a date
for a formal hearing. Appellant renewed the motion to strike,
which again the Board denied.
The formal hearing was held on September 18, 1998. Prior
to the hearing, appellant renewed his motion to strike and
dismiss, which was denied. The Board made the following
findings of fact, in pertinent part:
On or about March 4, 1997, [appellant], by
his own admission, failed to properly
evaluate Patient A. In particular,
[appellant] negligently failed to adequately
document and evaluate a clinical
examination, including radiographs, a
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recorded periodontal examination, treatment
plan and caries charting.
Furthermore, [appellant] recommended the
placement of a maxillary removable partial
denture without documenting other treatment
options or the discussion of risks.
The Board found that these facts constituted a violation of Code
§§ 54.1-2706(A)(5) and –2706(A)(9), 18 VAC 60-20-150(B)(3), 18
VAC 60-20-150(B)(5), and 18 VAC 60-20-170(4).
Appellant appealed the Board's decision to the circuit
court on the ground that the Board violated his due process
rights because the statement of particulars was "vague,
overbroad and insufficiently specific as to the facts supporting
each violation of law . . . so as to prevent [appellant] from
understanding the nature of the charges against him and
preparing an adequate defense." Appellant also argued that the
Board's finding that he violated 18 VAC 60-20-150(3), a
regulation that the Board had never cited in its charges or
statement of particulars, was a violation of his due process
rights.
The trial court affirmed the Board's findings, stating in
its order that the notice and hearing and statement of
particulars issued by the Board were "proper and reasonable and
not so overbroad that . . . [a]ppellant was constitutionally
deprived of any right."
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ANALYSIS
"Procedural due process rules are meant to protect persons
not from the deprivation, but from the mistaken or unjustified
deprivation of life, liberty, or property." Carey v. Piphus, 435
U.S. 247, 259 (1978). The rules "guarantee[ ] that a person shall
have reasonable notice and opportunity to be heard before any
binding order can be made affecting the person's rights to liberty
or property." McManama v. Plunk, 250 Va. 27, 34, 458 S.E.2d 759,
763 (1995).
We find that the trial court erred in ruling that the Board's
statement of particulars gave appellant sufficient notice of the
charges against him. The Board alleged appellant violated Code
§ 54.1-2706(A)(9). This statute provides that the Board may
reprimand a licensee, or suspend or revoke a license for
"violating, assisting, or inducing others to violate any provision
of this chapter or any Board regulation." Code § 54.1-2706(A)(9).
In addition, the Board alleged appellant violated 18 VAC
60-20-170(4), which provides that unprofessional conduct includes
"[c]ommitting any act in violation of the Code . . . reasonably
related to the practice of dentistry and dental hygiene."
Although appellant, on several occasions, specifically requested
the Board to identify the precise statute or regulation to which
the Board was referring by citing these broad, "catch-all"
provisions, the Board failed to provide appellant with an answer.
Moreover, the Board failed to identify the conduct of appellant
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that established the unspecified violation or violations. We
agree with appellant that this "drag-net" approach violated his
due process rights.
The Board also alleged that appellant violated Code
§ 54.1-2706(A)(5) which provides for a reprimand or license
revocation for "[i]ntentional or negligent conduct in the practice
of dentistry or dental hygiene which causes or is likely to cause
injury to a patient." The Board's statement of particulars did
not specify what conduct caused or was likely to cause injury to
the patient. The Board alleged only that appellant failed to take
a radiograph of the patient, caused a cast metal framework to be
constructed, and recommended a course of treatment which was
unnecessary. Nothing in the Board's statement of particulars
indicated the patient was injured or was likely to be injured by
appellant's conduct.
Likewise, the Board's statement of particulars failed to
allege the particular standard of ethics or dental hygiene or the
specific conduct of appellant that resulted in an allegation that
appellant violated Code § 54.1-2706(A)(10). 1
1
Code § 54.1-2706(A)(10) provides that the Board can
reprimand, or suspend or revoke the license of a dentist for
"[c]onducting his practice in a manner contrary to the standards
of ethics of dentistry or dental hygiene or in a manner
presenting a danger to the health and welfare of his patients or
to the public."
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Furthermore, after the formal hearing, the Board found
appellant had violated 18 VAC 60-20-150(B)(3), 2 a record keeping
regulation which the Board had never alleged appellant violated.
The Board contends that the basis for this violation was
appellant's admission during the hearing that he understood that
he "need[s] to make more notations [in his patients' records] so
that other people can see what was going on."
In In Re Ruffalo, 390 U.S. 544 (1968), an attorney was
charged with twelve counts of misconduct. During his testimony at
his disciplinary hearing, the attorney made a statement resulting
in the Board of Commissioners on Grievances and Discipline adding
a thirteenth charge. The United States Supreme Court held that
the lack of notice to the attorney as to "the reach of the
grievance procedure and the precise nature of the charges"
deprived the attorney of procedural due process. Id. at 552. The
Court stated:
These are adversary proceedings of a
quasi-criminal nature. The charge must be
known before the proceedings commence. They
become a trap when, after they are underway,
the charges are amended on the basis of
testimony of the accused. He can then be
given no opportunity to expunge the earlier
statements and start afresh.
2
18 VAC 60-20-150(B)(3) provides that a dentist shall
maintain patient records, including "diagnosis and treatment
rendered," for a specified period of time and for purposes of
review by the Board.
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Id. at 551. Accordingly, we find that the Board erred in
finding that appellant violated a regulation for which he was
not charged in the notice of formal hearing.
Prior to his formal hearing before the Board, appellant was
entitled to "reasonable notice of . . . the matters of fact and
law asserted or questioned" by the Board. Code
§ 9-6.14:12(B)(iii). We find that the Board failed to provide
appellant with reasonable notice of the facts and law asserted.
As in the criminal context, the Board
should be required to fairly particularize
the charge or charges [it] intends to
prosecute, and not be permitted to go on a
fishing expedition with a drag net. "The
bill should be directed at those charges as
to which the [Board] expects to introduce
supporting testimony."
Casper v. City of Danville, 160 Va. 929, 933, 169 S.E. 734, 735
(1933) (citation omitted).
"[E]very one accused of crime is entitled to
have stated in plain and unequivocal terms
the offense for which he is to be
prosecuted. This much will be required even
in a civil case. The State has no desire to
leave one of its citizens in doubt or
uncertainty as to any offenses charged
against him. Prosecuting attorneys know, or
ought to know, in advance, what they can
prove, and ordinary justice demands that
they should give the accused a fair
statement of the offense for which he is to
be prosecuted."
Id. at 932, 169 S.E. at 735 (citation omitted) (emphasis added).
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For these reasons, we find that the trial court erred in
ruling that the Board's statement of particulars was sufficient.
Accordingly, we reverse and dismiss this case.
Reversed and dismissed.
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