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KENNETH R. OPPENHEIM v. COMMONWEALTH PENNSYLVANIA (05/06/83)

decided: May 6, 1983.

KENNETH R. OPPENHEIM, D.D.S., STEVEN M. SLOAN, D.D.S., PETITIONERS
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF STATE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS, STATE DENTAL COUNCIL AND EXAMINING BOARD, RESPONDENTS



Appeal from the Order of the State Dental Council and Examining Board in the case of in the Matter of the Suspension or Revocation of Dental License No. DS-20111-L, issued July 14, 1977 to Kenneth R. Oppenheim, D.D.S. and in the Matter of the Suspension or Revocation of Dental License No. DS-19309-L, issued October 28, 1975 to Steven M. Sloane, D.D.S., File No. 79-DE-1615, dated November 12, 1981.

COUNSEL

Alan M. Lieberman, with him, Susan W. Schneider, Schnader, Harrison, Segal & Lewis, for petitioners.

Jerome, P. Grossi, Assistant Counsel, with him, David F. Phifer, Chief Counsel, for respondent, State Dental Council and Examining Board.

Judges Rogers, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Craig.

Author: Craig

[ 74 Pa. Commw. Page 202]

Dentists Kenneth R. Oppenheim and Steven M. Sloane appeal from orders of the State Dental Council and Examining Board which suspended their licenses for ninety days. We affirm.

Jean Gladfelter Prescott, a registered dental hygienist and former part-time employee of Drs. Oppenheim and Sloane, initiated the complaint process against both dentists in May of 1979, informing Nancy Miller, then a registered dental hygienist active in local, state and national hygienist associations and now a member of the board, that Drs. Oppenheim and Sloane were permitting dental assistants, who were not licensed as dental hygienists, to perform oral prophylaxis. Mrs. Miller informed Mrs. Prescott that she would discuss the matter with Dr. Reuben Miller, her husband and a member of the board. Based upon Dr. Miller's subsequent recommendation, Mrs. Prescott submitted a letter to the board on July 10, 1979, describing the alleged violations.

In December of 1979, the board apparently conducted an informal hearing to consider Mrs. Prescott's allegation; Chairman McDermott and board members Penzur, Vaughters, and Miller, apparently participated.

The board also apparently voted unanimously to convene a formal hearing and, on June 9, 1980, issued citations and notices of hearing prepared by Assistant Attorney General William H. Andring. Each citation charged:

[ 74 Pa. Commw. Page 203]

That Respondent as a regular part of his practice and as a part of his office policy, did during 1979 employ and regularly assign persons not licensed as dentists or dental hygienists to perform oral prophylaxis on his patients, in that he allowed said unlicensed persons to remove tartar deposits, accretions, and stains from the exposed surfaces of the teeth and directly beneath the free margin of the gums, and to make application of medicaments to the exposed surfaces of the teeth.

The board held a formal hearing on September 9, 1980; present for the board and participating in the final license-suspension vote were Chairman McDermott and members Penzur, Vaughters, Fox, Jacobson, Petrini, and Clark. Dr. McDermott announced that board members Reuben and Nancy Miller would not participate. Assistant Attorney General Andring prosecuted the case.

Based upon the testimony of Mrs. Prescott and Joseph Garlan, an investigator with the Bureau of Professional and Occupational Affairs who conducted a one-hour undercover investigation of the dentists' clinic, the board found that, among other things, two unregistered dental assistants were performing unsupervised oral prophylaxis, scaling and polishing on a regular basis,*fn1 and that one of the assistants cleaned investigator Garlan's teeth with an ultra-sonic scaler.*fn2

The board concluded that Drs. Oppenheim and Sloane had violated sections 3(i) and 10 of the Dental Law (the Act)*fn3 and accompanying regulations.*fn4

[ 74 Pa. Commw. Page 204]

Drs. Oppenheim and Sloane contend that (1) the evidence presented at the hearing is insufficient to sustain the board's suspension order, (2) the Dental Law and its regulations are unconstitutionally vague because the board has failed to define the term "medicaments," as allegedly required by statute, and (3) the procedures followed by the board were violative of the dentists' due process rights because of (a) an alleged commingling of prosecutorial and adjudicative functions by the board and (b) testimony by two board members received at the hearing.

Before we address those issues, we must comment upon the inartful state of the charges brought against both dentists by the Commonwealth and, regrettably, reproduced in the board's conclusions of law. As noted above, the charges accused the dentists of permitting unlicensed personnel "to perform oral prophylaxis . . . in that [they] allowed said unlicensed persons to remove tartar deposits, accretions, and stains . . . and make application of medicaments to the exposed surfaces of the teeth."

We have no doubt that by using the phrase "in that," the board equated "oral prophylaxis" with various elements of the prophylaxis procedure subsequently described. Presumably, by permitting unlicensed personnel to perform any one of the activities which constitutes an element of the oral prophylaxis process, e.g., stain removal from teeth, a dentist would be committing an unlawful act. Nevertheless, the board should draft its charges and conclusions with greater precision, remembering that the responsibility of ultimate review may be borne by persons not educated in dentistry.

Substantial Evidence

With dental board appeals, we limit our scope of review to determining if the board has committed an

[ 74 Pa. Commw. Page 205]

    error of law, violated constitutional rights, or failed to support any necessary finding of fact with substantial evidence. Administrative Agency Law, 2 Pa. C.S. ยง 704; State Dental Council and Examining Board v. Friedman, 27 Pa. Commonwealth Ct. 546, 549, 367 A.2d 363, 365 (1976). Weight and credibility of the evidence are solely within the province of the factfinder. Kundrat v. State Dental Council and Examining Board, 67 Pa. Commonwealth Ct. 341, 447 A.2d 355, 359 (1982); Kunkle v. State Dental Council and Examining Board, 38 Pa. Commonwealth Ct. 254, 257-58, 392 A.2d 357, 358 (1978).

Relying upon State Board of Medical Education and Licensure v. Grumbles, 22 Pa. Commonwealth Ct. 74, 347 A.2d 782 (1975), where we rejected lay testimony used by a medical licensure board to revoke a physician's license for alleged drug addiction, Drs. Oppenheim and Sloane contend that we should declare Mrs. Prescott's testimony similarly deficient because her part-time status and her physical vantage point for observation in the office afforded her an inadequate opportunity to determine if the clinic's unlicensed dental assistants were using restricted instruments or performing restricted procedures. Specifically, the dentists contend that Mrs. Prescott's observations were made in passing and from too great a distance to be dependable, that the instruments used by the dental assistants were in the patients' mouths and thus not subject to scrutiny, and that Mrs. Prescott could not determine if the assistants were administering prophy paste, which they may not use lawfully, or amalgloss, which they may.

There is substantial evidence of record, however, to support the board's finding and conclusion that two dental assistants were performing unsupervised oral prophylaxis on a regular basis; Mrs. Prescott testified that (1) as a licensed dental hygienist, she could recognize

[ 74 Pa. Commw. Page 206]

    the performance of a prophylaxis procedure and that she (2) witnessed the dentists instruct their unlicensed assistants to perform prophylaxis, (3) saw the assistants use an ultrasonic cleaner, scale mouths with scaling instruments, and take a polishing cup and polish teeth, and (4) observed this happening on a regular basis.*fn5

Moreover, Investigator Garlan, who made an appointment to have his teeth cleaned, substantially corroborated

[ 74 Pa. Commw. Page 207]

Mrs. Prescott's testimony in layman's terms by ...


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