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STEPHEN D. MOSES v. COMMONWEALTH PENNSYLVANIA (04/19/79)

decided: April 19, 1979.

STEPHEN D. MOSES, D.D.S., PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, STATE DENTAL COUNCIL AND EXAMINING BOARD, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, DEPARTMENT OF STATE, RESPONDENT



Appeal from the Order of the State Dental Council and Examining Board in case of In the Matter of the Suspension or Revocation of License Number 15790, to Practice as a Dentist, Issued July 2, 1964, to Stephen D. Moses, D.D.S., dated January 18, 1978.

COUNSEL

David E. Lehman, with him McNees, Wallace & Nurick, for petitioner.

James P. Deeley, Assistant Attorney General, with him Gerald Gornish, Acting Attorney General, for respondent.

Judges Rogers, Blatt and DiSalle, sitting as a panel of three.

Author: Per Curiam

[ 42 Pa. Commw. Page 107]

We have before us an appeal from the order of the State Dental Council and Examining Board (Board) suspending for six months the license of Dr. Stephen D. Moses (Appellant) to practice dentistry.

The charges against Appellant arise out of services he claims to have performed on ten of his patients, each of whom was insured under the Sharon Steel Corporation Group Dental Plan. Appellant submitted claims for payment of those services to the Prudential Insurance Company (Prudential), the insurance carrier for the group plan. Prudential's consultant, Dr. Carl Flecker, reviewed the claims and examined each of the ten patients, and issued an unfavorable report. After receiving the report, the Board, on February 25, 1977, charged Appellant with submitting 68 false and fraudulent claims in violation of Section 3(i) of The Dental Law (Act), Act of May 1, 1933, P.L. 216, as amended, 63 P.S. § 122(i).

Hearings were held on June 15 and 16, 1977. Appellant requested that the Board subpoena his patients and order them to submit to a physical examination by Appellant and his expert witnesses. The Board refused. However, the Board kept the record open, allowing Appellant a further opportunity to physically examine each of his patients. When only one patient agreed to submit to an examination, the Board, by order of September 28, 1977, appointed three impartial experts to examine the patients, with Appellant present. The Board withdrew its order, however, after Appellant objected to it on the grounds that it improperly involved the Board in a prosecutorial function and that the passage of time, causing as it does the deterioration of structures, made it too difficult to determine the condition of a patient's mouth some two years earlier.

[ 42 Pa. Commw. Page 108]

On January 18, 1978, the Board ordered the six-month suspension of Appellant's license to practice dentistry.

Appellant, in his petition for review, raises essentially two arguments. One goes to whether the record contains substantial evidence of a violation of the Act and the other to whether the Board afforded Appellant due process of law.

At the outset, we disagree with Appellant's contention that the Board must find evidence of each of the common law elements of fraud, i.e., misrepresentation, materiality, scienter, reliance and damages. Section 3(i) of the Act makes unlawful "fraudulent or unlawful practices, or fraudulent, misleading or deceptive representations." (Emphasis added.) Consequently, the argument by Appellant that Prudential did not rely on his misrepresentations to its injury is misplaced.

Turning to the substantial evidence issue, we note that of the 68 counts in the citation issued by the Board, 33 allege that Appellant overstated the number of tooth surfaces involved in the tooth restorations (or "fillings") for which he claimed compensation. For purposes of this discussion, Appellant asks us to visualize a tooth as a three-dimensional box, having four side surfaces and one top surface. When dentist restores (fills) a tooth, the size and location of the decay will determine the number of surfaces affected by the restoration. On the Prudential claim form, Appellant would identify, by number, each tooth he restored and the tooth surfaces involved.

Dr. Flecker, the Commonwealth's only expert witness, examined each of the 33 teeth in question and testified that in many instances, the restorations involved fewer surfaces than the number claimed by Appellant. Dr. DeSantis, one of Appellant's witnesses, testified that as to the four restorations which

[ 42 Pa. Commw. Page 109]

    he viewed, each involved exactly as many surfaces as Appellant claimed. Other dentists testified that surface involvement is a question of interpretation, requiring the judgment and discretion of the particular dentist performing the work. Even Dr. Flecker conceded that the surfaces disallowed by him were incidentally ...


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