(concurring).
The State Board of Dentistry ordered that the dental license of Dr. Nelson be suspended for an “indefinite length of time.” Further, that “he pay all costs of the proceedings and the prescribed reinstatement fee; and upon such payment the dental license of Dr. Nelson shall be reinstated.” This was dated August 31, 1988. The last brief was filed herein on February 5, 1990. This case was argued on May 21, 1990.
It appears that justice moved very slowly in this case.
There are some facts, other than those expressed in the majority opinion, which, in my opinion, should be mentioned. Nearly all of Dr. Nelson’s patients were toddlers and very young children. Some of these children had a reaction, while receiving nitrous oxide, which is manifested by irregular breathing, nausea, sweating, and a flushed or colorless face. In Dr. Nelson’s office, nitrous oxide was often administered to a child without ever checking with Dr. Nelson. A dental assistant would rely, upon the record, to determine if nitrous oxide should be administered. And the level of nitrous oxide, who would then determine same? Again, a dental assistant made a determination based upon the age and apprehension of the child. Patients were seated and given nitrous oxide before being seen by the dentist. This would happen when a patient, as an example, was four years old and had never previously been administered nitrous oxide. Dr. Nelson had 14 chairs in his operatory with four of them equipped with nitrous oxide units. There were two portable nitrous oxide units available as a backup.
Unfortunately, this portrayed a rather commercial operation as distinguished from a professional standard of care. In my opinion, the quest ultimately became the making of money which resulted, as the Board found, in “unacceptable patient care.” I commend this Board for upholding a professional stance to the general public and for finding that there are skills that simply may not be delegated by a dentist to dental auxiliaries. The South Dakota State Board of Dentistry upheld its duty to protect the public and I would, in all things, bless their action.
Under ARSD 20:43:04:05.01(3), the rules absolutely prohibited a dentist from delegating to dental assistants the administration of analgesia except for topical anesthetic.