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Johnson v. District of Columbia Department of Health

Court of Appeals of Columbia District

July 13, 2017

Robert B. Johnson, Petitioner,
v.
District of Columbia Department of Health, Respondent.

          Argued April 18, 2017

         On Petition for Review of an Order of the District of Columbia Board of Dentistry (DEN-5788)

          Alan Dumoff for petitioner.

          Adam Daniel for respondent. Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Donna M. Murasky, Senior Assistant Attorney General, were on the brief.

          Before Thompson and McLeese, Associate Judges, and Ruiz, Senior Judge.

          THOMPSON, ASSOCIATE JUDGE.

         Petitioner Robert B. Johnson challenges the October 29, 2015, Superseding Decision and Final Order (the "Superseding Decision") of the District of Columbia Board of Dentistry (the "Board" or the "D.C. Board") that revoked his license to practice dentistry in the District of Columbia. For the reasons set out below, we remand for the Board to reconsider the sanction it imposed.

         I.

         On September 27, 2013, the Virginia Board of Dentistry (the "Virginia Board"), after conducting a two-day hearing, issued an order revoking petitioner's license to practice dentistry in Virginia. The order set out the Virginia Board's findings on charges against petitioner based on the treatment of twenty-two patients over the course of a decade. On June 18, 2014, the D.C. Board issued a Notice of Intent to Take Disciplinary Action ("NOI") based on the disciplinary action taken in Virginia.[1] Based on the Virginia Board's findings of fact, the NOI selectively charged petitioner with infractions in connection with the treatment of several patients in Virginia.

         The D.C. Board conducted a hearing on August 27, 2014, during which it heard testimony from government expert witness Dr. Robert Caldwell, D.D.S., petitioner, and a few of petitioner's former patients. The Board issued a Decision and Order on November 5, 2014 (the "Original Decision"), in which it adopted all of the Virginia Board's findings of fact, including findings relating to acts or omissions by petitioner that were not specified in the NOI, and revoked petitioner's license to practice dentistry in the District. Petitioner timely sought review of the Original Decision by this court. On July 16, 2015, this court granted a consent motion to remand the record for further proceedings "in light of [petitioner's original] brief[, ]" which asserted that the Board had erred in a number of respects, primarily by failing to "limit[] its inquiry into the specific charges contained in the District's [NOI]" and by "failing to consider whether the conduct at issue in Virginia would have been grounds for taking disciplinary action in the District[.]"[2]Thereafter, on October 29, 2015, the Board issued its post-record-remand Superseding Decision, which is the subject of the instant review.

         In the Superseding Decision, the Board adopted only those findings by the Virginia Board that were repeated in the NOI. After disposing of several pending motions (including a motion by petitioner to obtain information concerning a pending investigation by the Board into a complaint brought by a patient in the District of Columbia, which motion the Board denied), the Superseding Decision concluded that petitioner (who, the Board found, "practiced general dentistry and is a general dentist") committed (in Virginia) the following acts or omissions, which it found are grounds for discipline in the District of Columbia:

• On September 9, 2010, [petitioner] injected into Patient H's sinus area [certain] homeopathic substances[;]
• On March 10, 2008 and August 11, 2009, [he] administered a series of injections of unspecified substances to Patient J's sinus area without documenting the dental need for or diagnosis relating to such treatment;
• On August 18, 2010, [he] replaced the crown on Patient O's tooth #15 without documenting a diagnosis as to the reason for the replacement[;]
• [His] treatment record for Patient R from April 2008 to December 2010 does not contain an initial or updated health history[;]
• With respect to Patient T, from approximately 2003 to 2011, [his] records were devoid of an initial health history or subsequent updated history[;]
• [His] progress notes for Patient T end on July 22, 2009, but his billing for the patient indicates that he continued to provide treatment to her on multiple occasions after July 22, 2009[;]
• On September 26, 2005, [he] removed amalgam from Patient K's teeth #3, 4, 29, 30, and 31 without an adequate dental indication for doing so (or any diagnosis of mercury poisoning, allergy, or related condition by a medical doctor)[;]
• On September 23, 2009, [he] provided injections of procaine, methyl, and folic acid into Patient O's tonsils for pain. . . . [and] [t]here was no documentation of a dental diagnosis for this treatment[;][3]
• On July 29, 2009, [he] performed cranial myofascial therapy on Patient S without adequate dental diagnosis for doing so[;]
• [He] also [in 2009] removed amalgam from Patient S's teeth without an adequate dental indication for doing so (or any diagnosis of mercury poisoning, allergy or related condition by a medical doctor).[4]

         The Board found that ―any of the above-described findings - relating to "practicing outside the scope of his dental license, " "failing to conform to the standards of acceptable conduct and prevailing practice, " and "failure to properly maintain records" as required by regulation in the District of Columbia - was "sufficient to warrant the imposition of disciplinary action" in the District of Columbia. Citing petitioner's devotion to a "holistic approach toward the practice of dentistry[, ]" the Board also found "that there are no restrictions, fines, or courses that it could impose that would stop [petitioner] from crossing the line and engaging in practices that are beyond the scope of practice of dentistry and/or that fail to conform to the standards of acceptable conduct and prevailing practices of dentistry in the District of Columbia." Quoting petitioner's statement at the close of the hearing that he had "basically stopped doing" procedures when he learned that they were not acceptable in Virginia, the Board found that his testimony, which the Board called "disingenuous and self-serving, " "implie[d] that he continued doing these procedures in some manner or form, as opposed to full-stop cessation[, ]" a fact that the Board found "undermine[d] his statements that he would not engage in conduct if he knew that it was not permissible." The Board found that petitioner "knew or should have known that his conduct was not acceptable and that he chose to ...


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