dissenting.
I agree with the majority that C.R.C.P. 15(b) can apply in disciplinary actions. However, because I believe the ALJ and the Board here misapplied C.R.C.P. 15(b) and violated respondent's right to due process, I respectfully dissent.
The law imposes an obligation on administrative agencies to be fundamentally fair when resolving disputes involving governmental action that threatens to deprive an individual of a significant property interest. See deKoevend v. Board of Education, 688 P.2d 219 (Colo.1984). A license to practice dentistry is a valuable property right which is protected by the Due Process Clause of the Fourteenth Amendment and by Colo. Const. art. II, § 25. Colorado State Board of Dental Examiners v. Micheli, 928 P.2d 839 (Colo.App.1996). Thus, a respondent must have an opportunity to be heard following adequate notice of the nature of the proceedings. Norton v. Colorado State Board of Medical Examiners, 821 P.2d 897 (Colo.App.1991).
This due process standard is defined, as pertinent here, in § 24-4-105(@)(a), C.R.S. 1999; "Any person entitled to notice of a hearing shall be given timely notice of the time, place, and nature thereof, the legal authority and jurisdiction under which it is to be held, and the matters of fact and law asserted."
In practical terms, this notice must specify the factual conduct, Colorado State Board of Dental Examiners v. Micheli, supra, and the particular legal grounds relied upon. See Colorado State Board of Medical Examiners v. Boyle, 924 P.2d 1113 (Colo.App.1996). Indeed, the supreme court has held that the only matters an administrative board may properly consider at a quasi-judicial hearing are those included in the notice upon which the hearing is based. Spears Free Clinic & Hospital for Poor Children v. State Board of Health, 122 Colo. 147, 220 P.2d 872 (1950).
Here, the Notice of Charges alleged: 1) the patient, S.R., "was experiencing pain" in two teeth and "did not request nor desire crown placements" in two other teeth; 2) respondent had refused to restore the first two teeth without prior crown placement on the two other teeth; and 3) "Respondent's failure to immediately treat [the first two teeth] constitutes an act or omission which fails to meet generally accepted standards of dental practice."
The Board's prehearing statement specified that those allegations were the basis of its case. And, in his opening statement to the Administrative Law Judge (ALJ), counsel for the Board said: "Because the Respondent failed to immediately treat S.R.'s two cavities, the evidence will show that the Respondent's conduct violated § 12-25-118(1)G) ...."
Thus, the pleadings clearly show that the theory of the Board's case was that respondent had provided substandard care by refusing to provide immediate treatment to a patient who had said she was in pain. They made no reference, either direct or indirect, to a treatment plan sequence (the order in which dental work is done), which the Board agrees is an entirely different concept from a treatment plan (a listing of the dental work that needs to be done).
Respondent's counsel, in his opening statement, affirmed that respondent's understanding of the issue to be tried related solely to the treatment plan issue. He went on to say, "this case does not involve an issue of whether or not it was substandard to treat crowns before cavities." Counsel for the Board made no objection or clarification to that statement.
The Board's motion, to amend the charges to allege that respondent had an improper treatment plan sequence, was made immediately before closing arguments, after all the evidence had been received. Respondent's counsel objected, but the ALJ overruled the objection.
As the ALJ found, the evidence at the hearing showed that S.R. was not experiencing pain in any teeth on the day she went to respondent's office, nor had she told anyone she was. She prevented respondent from explaining his proposed treatment plan for nine of her teeth or from discussing her current condition with her. She did not have *1187the two teeth in question filled until more than a month after the incident here.
The ALJ found respondent's intended treatment plan was reasonable and was within generally accepted standards of dental practice. However, the ALJ went on to determine, once the patient had refused the placement of crowns on two teeth, no reasonable basis existed on which to refuse to fill the cavities on two other teeth. Thus, the ALJ concluded, while respondent's treatment plan was reasonable, his treatment plan sequence fell below generally accepted standards of dental practice.
The record is clear that respondent did not receive notice that the treatment plan sequence would be an issue to be litigated at the hearing. This did not give him a meaningful opportunity to respond, and therefore, I believe it violated his right to due process. See Spedding v. Motor Vehicle Dealer Board, 931 P.2d 480 (Colo.App.1996).
I disagree with the majority's conclusion that the issue of the propriety of the treatment plan sequence was intentionally and actually tried.
C.RCP. 15(b) allows pleadings to be amended to conform to the evidence only with the trial court's permission. In civil cases, the court may allow such an amendment only where there is no reasonable doubt that the issue raised by the proposed amendment has been intentionally and actually tried. Real Equity Diversification, Inc. v. Coville, 744 P.2d 756 (Colo.App.1987). It is not enough that some evidence has been presented germane to the issue sought to be tried. Clemann v. Bandimere, 128 Colo. 24, 259 P.2d 614 (1953).
These principles are premised upon the notice pleading foundation of the Colorado Rules of Civil Procedure. As stated in Yoder v. Hooper, 695 P.2d 1182, 1185 (Colo.App.1984), aff'd, 737 P.2d 852 (Colo.1987): "Under our rules of civil procedure, the precise legal theory asserted by a claimant is not controlling, so long as the complaint gives sufficient notice of the transaction sued upon." See also C.R.C.P. 8.
Those conducting hearings, such as the one here, pursuant to § 24-4-105(4), C.R.S.1999, have the authority to take any action "in accordance, to the extent practicable, with the procedure in the district courts." Thus, the Colorado Rules of Civil Procedure can offer assistance. See C.R.C.P. 81.
However, as noted previously, in discipline actions, the property right of a professional license triggers the application of the due process requirements that actual notice of the specific facts and particular legal grounds must be given. See Colorado State Board of Dental Examiners v. Micheli, supra, and Colorado State Board of Medical Examiners v. Boyle, supra. See also §§ 24-4-105(1) and 24-4-105(2)(a), C.R.S.1999.
Therefore, while the Colorado Rules of Civil Procedure offer guidance in deciding issues regarding the conduct of administrative hearings, Weiss v. Department of Public Safety, 847 P.2d 197 (Colo.App.1992), the agency's decision must demonstrate the use of sufficient standards ensuring rational and consistent results in the application of the statute and adequate procedural safeguards. Zamarripa v. Q & T Food Stores, Inc., 929 P.2d 1332 (Colo.1997).
Here, as indicated, neither the pleadings, counsels' arguments, nor the evidence notified respondent that the propriety of his treatment plan sequence was at issue. This, in and of itself, forms a basis for reversal. See In re Ruffalo, 390 U.S. 544, 88 S.Ct. 1222, 20 L.Ed.2d 117 (1968); In re Quiat, 979 P.2d 1029 (Colo.1999). In his mid-trial motion to dismiss, respondent's counsel argued that due process principles required dismissal. He pointed out that:
[Wle believe that the evidence has not substantiated the Board's conclusion ... and allegations that [respondent] refused to immediately treat [two teeth] because the patient presented as being in pain. We think that is the integral allegation and substance of this claim against [respondent], and that this Government has not met its burden of proof based upon the testimony of its own expert witnesses, and just as importantly, the testimony of [the patient].
The importance of the issue in the pleadings is that these pleadings represent the *1188position of the Dental Board as to why ... it has [made] the immediate determination that charges should be filed.... There has been no motion to amend the complaint in this case to comply with the testimony of the expert witnesses, which would be a condition precedent to overcoming the deficiency in the pleading.
Specifically-the amendment, had it been made, would have been specifically that [respondent's] treatment planning sequence was below the standard of care. The complaint was not amended, and indeed, if you recall the testimony of [the two experts], in the absence of pain, the only criticism was the sequence of the treatment, not an issue based upon pain, and that [two teeth] needed to be immediately treated.
The Board's attorney did not move then to amend the complaint. However, he argued that, under notice pleading principles, respondent had received sufficient notice to comport with due process.
The ALJ agreed with the Board's attorney and noted that, even though the complaint made no mention of a treatment plan sequence, some facts alleged in the complaint, and elicited in the Board's case-in-chief, would support such a charge. He also opined that he did not believe respondent had been surprised by the way the evidence had developed, nor had he been prejudiced. Thus, finding that respondent had not been denied fundamental fairness, he denied respondent's motion.
These facts demonstrate that respondent not only had no proper notice of the charges but that the issue was not tried. The failure of the Board's attorney to seek an amendment at mid-hearing demonstrated the Board's reaffirmance of its position that the treatment plan sequence was not the basis of the charges.
And, the comments of the Board's attorney and the ALJ's ruling both reflect their misapprehension that notice pleading was sufficient in cases such as this. The law is clear, however, that notice pleading concepts do not apply in such cases.
This error was compounded by the amendment to the charges after all evidence had been received. This gave respondent absolutely no opportunity to counter what ultimately became the basis for discipline.
The ALJ made no findings concerning the due process implications of the proposed amendment. Indeed, he made no findings that C.R.C.P. 15(b) had been complied with and that no reasonable doubt existed that the issue had been intentionally and actually tried. See Real Equity Diversification, Inc. v. Coville, supra.
The ALJ's own findings show that the treatment plan sequence issue was not tried by consent. And, the record demonstrates that any evidence relating to that issue was introduced over the objection of respondent.
Consequently, I believe the conduct of this hearing violated respondent's right to due process. Therefore, I would reverse the Board's determination.
Additionally, in my view, the majority's reliance on People v. Garcia, 940 P.2d 357 (Colo.1997), is misplaced. There, the supreme court held that the lesser non-included offense of which defendant was convicted was easily ascertainable from the charging document and was not so remote in degree from the offense charged that its addition appeared to be an attempt to salvage a convietion from a weak case.
Here, respondent's discipline rested on a violation equal in degree to that charged. And, as detailed earlier, not only did the charging document not give him notice of the additional charge, but the statements and conduct of the Board's attorney and the ALJ led him to believe that the additional charge was not an issue. Finally, since, as the ALJ found, the factual basis for the original charge was wholly insufficient, the amendment at the close of all the evidence was an attempt to salvage a weak case.
Moreover, to the extent respondent's discipline was premised on his failure or refusal to follow the patient's wishes, I would also reverse.
The patient admitted she had not given respondent an opportunity to explain her condition, the proposed treatment plan, or *1189the proposed treatment plan sequence to her. Thus, her purported "wishes" rested on an incomplete and insufficient understanding which resulted from her own behavior. Therefore, since they lacked a proper factual foundation, her "wishes" had no import.
Accordingly, I would reverse the Board's imposition of discipline and order that the case be dismissed.