Disciplinary Actions against Terry J. Lee, D.D.S.
After 16 days of hearings, an administrative law judge recomended revoking the dental license of Terry J. Lee, D.D.S., of Phoenix, Arizona. In February 1999, the state dental board decided instead to censure Lee and to order 5 years' probation; 48 hours of continuing education; and 5 years of quarterly audits of diagnosis, treatment, planning skills, and recordkeeping. Dr. Stephen Barrett served as an expert witness for the board. The judge's report reveals the extent to which Lee engaged in highly dubious practices. Knowledgeable observers believe that the relatively light penalty resulted from threats by state legislators to abolish the board if it revoked Lee's license. A subsequent investigation by the Arizona Auditor General concluded that the board's sanction was based on the quality of his dental work and not his "holistic" philosophy.
In July 2004, the board charged Lee with unprofessional conduct by failing to maintain adequate records. The complaint was filed after an audit of his charts found that (a) he did not record evaluations for many patients for whom he provided periodontal (gum) treatment; (b) he administered intravenous vitamin C infusions without documenting any diagnosis or health history justifying their use; and (c) he made notions of "detox" without sufficiently identifying what it is or wny he believed it was necessary. In February 2005, the board upheld the complaint, assessed a $4,000 penalty, and suspended his dental license for 45 days. Lee has the right to appeal this order, but if he does, he is unlikely to prevail.
BEFORE THE BOARD OF DENTAL EXAMINERS OF THE STATE OF ARIZONA
In the Matter of
Terry J. Lee, DDS
95083, 95084, 95135,
5178, 95312, 96024, 96054,
96175 and 97341
On February 19, 1999, this matter came before the Board of Dental Examiners of the State of Arizona for oral argument and consideration of the Recommended Decision and Order presented by the Administrative Law Judge/Arizona State Office of Administrative Hearings. Terry J. Lee, DDS appeared in person and was represented by Charles G. Brown, Attorney at Law; the State of Arizona was represented by Assistant Attorney General Victoria M. Mangiapane; the Board was advised by Assistant Attorney General Thomas J. Dennis, of the Civil Appeals Section of the Office of the Attorney General. The Board, having considered the entire Administrative Record in this matter, hereby issues the following Findings of Fact, Conclusions of Law and Order:
FINDINGS OF FACT
1. The Respondent herein, Terry J. Lee, D.D.S., is and at all times material hereto was, a dentist licensed in the State of Arizona by the Board of Dental Examiners, holding License Number 1555. He is a general practitioner, and an adherent to what he calls "holistic, biological type of dentistry." According to him tenets of that practice include the use of "nontoxic or least toxic dental materials that effect [sic] the teeth, gums, oral cavities which general dentist [sic] usually use or practice." He does not "do root canal fillings." (Transcript of Evidence, Volume 20, pages 4 and 5; hereinafter abbreviated thusly: 20:4,5). Respondent also employs other techniques in his practice which he testified sets him and other socalled "holistic" dentists apart from all other dentists, including the use of "electrodermal screening" and "applied kinesiology." (20:6) He counsels all his patients regarding his "holistic" approach. (22:44, 45). Which of those that are relevant to these cases will be described and discussed below where appropriate. The number of dentists who refer to themselves as "holistic" or "biological" amount to a small minority of dentists in the profession. (Record as a whole.)
2. Essentially there is but one path to the career of a dentist in Arizona, and nowhere along the way is a distinction drawn as between "holistic" dentists and any other kind. Aspirants to a career as a dentist must first earn an undergraduate degree (or nearly do so), then graduate from an accredited dental school, pass a character and fitness background check, pass a jurisprudence test, take and pass the National Boards, take and pass the Western Regional Examination Board, and then apply for and receive an Arizona license. (32:3436).
3. This contested matter includes nine consolidated cases, each involving a separate patient of the Respondent's. The patients, for the purpose of preserving their confidentiality, are referred to by their initials in all cases save one, where the patient preferred to be identified by her name.
4. The first case is Complaint Number 95083, involving patient S.T. According to Respondent's patient records, S.T. presented to Respondent on or about January 3rd, 1995. S.T. had no dental problems when first she went to Respondent. (7:122). She had an existing crown on tooth #19. She was suffering with hyperthyroidism and hoped to obtain some treatment from Respondent that would improve that condition. She had been told by medical doctors that her thyroid should be ablated, and she went to Respondent seeking a less invasive treatment of her thyroid condition. (1:35; 7:116; 20:45, 46). S.T. was counseled by Respondent that he could perhaps help her hyperthyroidism with his dental treatment. (7:40; 20:45, 46).
5. Respondent failed to perform a comprehensive examination of S.T. on her initial visit. (20:53). Respondent's diagnosis of S.T. consisted of testing her with an amalgameter. (20:43). An amalgameter is a "microamp meter"" which is supposed to check for "microamperage," or electrical current on crowns, amalgams, and bridges, (20:30, 31; 22:122). An amalgameter is not a generally accepted diagnostic tool in the dental community (9:29; 31:54;
State's Exhibit 28 (hereinafter abbreviated as SE_)). There is no substantial evidence of record to show that the amalgameter has any diagnostic value in dentistry. According to Respondent, the amalgameter indicated that S.T.'s tooth #19 had a "high negative." "[S]he had, "according to Respondent, "electrical current that was being generated in that area which was blocking the (acupuncture) meridians." (20:48). This reading formulated Respondent's diagnosis and prompted him to remove the crown from #19. The only patient record documentation of the diagnosis of tooth #19 Respondent recorded was: "35."
6. Respondent placed a provisional crown on S.T.'s #19, but never seated a permanent crown for her. While it is true that S.T. ceased treating with Respondent after he placed the provisional crown, it is also true that Respondent never advised her after the termination of his treatment that she should return to him or see another dentist for placement of a permanent crown. (20:92, 9799).
7. Respondent also performed cavitational surgery on S.T.'s tooth #17. A cavitation is a residual area of necrotic bone in the upper or lower jawbone around the former site of a tooth. Cavitational surgery involves cutting into the soft tissue to reach the bone, and curetting, or cleaning out, the bone surrounding the necrotic area. (1:49; 20:148). The procedure is no longer encouraged in modern dentistry. (SE 23). Respondent based his diagnosis of the cavitation on the results of the amalgameter, the computron and applied kinesiology. (20:34, 40, 41;22:121123). The amalgameter already has been discussed.
8. The computron is claimed to be a legitimate electrodiagnostic device. In Respondent's words the computron is "just simply a resistance meter that measures the resistance, the skin resistance. Basically, what it is an ohm meter. That's what it is, just an ohm meter, resistance meter." (27:18). It is used, he testified, to "(m)easure the electromagnetic system of the body. And it will tell us whether there's a field of disturbance or not." (27:135). the State's expert witness, Dr. Stephen Barrett, testified that these devices are "complete nonsense," "just silly," and that the computron is a "delusional test." (31:34). When using the computron that patient grasps a cylinder usually having moistened gauze around it, and the device sometimes is filed with purported remedies. The user then applies some probes to the skin of the patient's mouth at where are understood to be acupuncture meridians, and the device yields a reading of some measurement. What actually determines the reading given by the machine is the amount of pressure the user applies with the probes to the patient's skin. (27:24026; 331:2935). These devices have no dental treatment value, and no legitimate diagnostic use in dentistry. These devices actually are nothing more than fancy galvanometers. (SE38). In the testimony of Dr. Barrett, the best they can hope to measure objectively is "the amount of sweat on you skin." (31:35, 39.) Respondent even admitted that his computron has not been approved by the federal Food and Drug Administration; that it is an "experimental instrument" which he is allowed to use for "study purposes." (27:17. Respondent uses his computron as an aid in diagnosing cavitations. (27:19).
9. Applied Kinesiology (AK) is, according to Respondent, "muscle testing," and is used to see if the patient "has normal body regulation, if she has normal polarity." (20:34,35). He uses AK routinely in his office. (27:21) . AK is performed by "[p]lacing your finger in the area where it may cause a problem, which stimulates that area. Resistance then is applied to a patient's muscle, often the arm. If there's a problem, you will have a weakness in the muscle." (27:20). AK also incorporates acupuncture meridians as a factor in its diagnosis. (SE 39). When a patient suppers from arthritis or other afflictions which reduce the musculatory function of a patient, the Respondent then employs his assistant as a "surrogate" in the test. In such cases, the patient places a finger inside her or his mouth, touching the subject area, while the "surrogate" touches the patient. Then, through a process described by the Respondent as a "transference," the "reading" is sent from the patient to the "surrogate," whose performance is merely that of a "conduit." Even according to the Respondent, the use of AK as a diagnostic tool is "hard to explain in a lot of ways. Unless you've gone through it, unless you're the tester, it's a matter of feel." (27:21, 8183). Two published researches have tried without success to demonstrate the effectiveness and usefulness of AK. (SE39,40). Dr. Barrett considers AK simply as "quackery," and the claim of "transference" as "completely looney [sic]." (31:40). AK has no demonstrated value as a diagnostic tool in dentistry.
10. S.T.'s bone at tooth area #17 was not pathologically involved. There was no reason for Respondent to have performed cavitational surgery at that site. (5/6:102, 103; 32:79, 80).
11. Respondent's dental records kept for S.T. are lacking almost to the point of nonexistence. his charts and file on S.t. do not contain any written , legible diagnosis, no written treatment plan, no dental charting and no periodontal charting. Respondent's recordkeeping of S.T. was "abysmal," and "terrible." (1:36,37;5/6:103,104). The administrative record contains no justification for these deficiencies. (see, e.g.: 1:50). S.T.'s records were below the standard of care acceptable for a dentist (9:33,34). For example, Respondent's "record" for S.T.'s tooth #19 was an horizontal blue line over the depiction of that particular tooth in the file chart. According to the Respondent that blue line meant to him that "the crown was taken off and it was temperized [sic]. basically that amalgam that was underneath it was taken out, a buildup material was placed and the provisional crown placed." (20:41). It would have required very little of Respondent's time indeed for him to have written those very words on S.T.'s record, but he did not.He did not because, as he testified, "all those marks[such as the blue line] mean something to me and my staff." (20:41,42). For another example, Respondent utilizes red and blue carets which, to him, indicate a cavitation and cavitational surgery performed, respectively. According to Respondent, once the cavitational surgery is performed the red caret is erased and a blue caret drawn over its former place. (20:39,40). Respondent conceded his own doubt that his colored lines and carets would mean something to another dentist such as the Board of Dental Examiners' Chief Investigator, Dr. Larry Pozil. (20:42;1:23). According to Respondent this method of his is quite subjective, being :just something that I developed on my own." Nor does Respondent have any written legend or key to which another dentist could reference for explanation. (20:52). He had his staff carry the legend around in their head (22:37). The importance of a dentist's thorough and legible patient records is obviously vital. What has been done to a patient, when and why, as well as what treatment of that patient lies ahead, all are essential information. While patient records need not be kept to the degree of writing out every procedural step with excruciating minutiae, if standard of care can be found to mean anything, surely the standard demands such records to be more than any individual dentist's scanty, personalized hieroglyphics.
12. Respondent never promised S.T. that his dental treatment would cure her hyperthyroidism. However, he did instill in her the empty hope that his treatment could possibly help that condition of her. (See: Finding of Fact #4, supra). There is no credible evidence of record to support a finding that the dental procedures Respondent performed on S.T. had the slightest chance of affecting a positive changed in S.T.'s hyperthyroidism to any degree. Therefore, it is found that Respondent was not treating a medical condition (hyperthyroidism). Finding the opposite would be tantamount to finding that Respondent actually was treating hyperthyroidism by his dental procedures, and would lend credence or dignify Respondent's claim of the possibility that his dental practice on S.T. could have caused an improvement of her hyperthyroidism, which is found not to be credible. What he did simply was practice dentistry, but make a false claim to what health benefit might derive as a result of his dental treatment.
13. S.T.'s husband testified that he did observe his wife "felt better after [the crown on #19] was removed for I believe it was about 24 hours." (7:126). However, based on the other evidence of record it is found that this was not evidence of the crown removal helping her condition, but a manifestation of her own predisposition to believe in the treatment. Following Respondent's last procedure on S.T., the cavitational surgery on #17, she and the Respondent's relationship deteriorated, and she did not return to him for further treatment. Her thyroid condition extremely worsened, and she was taken to a hospital. Doctors there performed the thyroid ablation surgery on S.T. Now, "[s]he's doing fine." (7:128,129,162165).
14. S.T. signed Respondent's standard consent form before he began treatment. However, this does not relieve Respondent as a dentist from his duty to provide adequate care to a patient. A dentist's first duty is to do no harm, and a patient cannot consent to be harmed. (25:143).
15. S.T.'s Complaint to the Board was filed not by her, but by her husband, D.T. (1:35). S.T. did not appear and testify at the hearing; however, the facts found in her case are amply supported by the testimony of her husband, the Respondent's own records and testimony, and the testimonies of other witnesses. Moreover, D.T. did not "speak for her," an inaccurate characteristic of his testimony imputed by Respondent in posthearing memorandum. He spoke of the circumstances of her treatment with Respondent, testimony he gave from his own personal knowledge.
16. The second case is Complaint Number 95084, involving patient D.T., who is S.T.'s husband. D.T. first presented to Respondent's office on January 4th, 1995. (27:13). He was not experiencing any pain at the time, but was seeking relief from his migraine headaches. (7:117, 130132). Respondent's treatment records reveal that he performed cavitational surgery at the area of D.T.'s tooth #16, on January 25th, 1995. (7:132;27:16). D.T. signed a consent form to have all surgeries recommended by Respondent performed.
17. The Respondent performed the cavitational surgery on D.T. based on his diagnostic findings with panographic radiographs, the computron and applied kinesiology. (27:16,19; D.T. patient records). None of this information provides a justifiable diagnosis for performing the cavitational surgery. (5/6:98, 99;32:81, 83). Findings as to the computron and AK already have been made. The panographic radiographs showed no evidence of need for a cavitational surgery. (Id., and 32:81, 83).
18. Respondent's treatment records of D.T. were below the standard of care. They contain no clinical examination notes, written diagnosis or treatment plan for D.T. (9:31; and D.T. patient records). D.T.'s treatment records contain no record of existing restorations. (27;30,31). Respondent's treatment records of D.T. contain no periodontal charting, even though Respondent testified to the importance of that information. (D.T. patient records and 22:34). Respondent testified that he does perform a periodontal examination for each patient, but that his practice is not to make a record of the results of the examination for pocketing in the gums unless a pocket is four millimeters deep or deeper. Respondent's position is that periodontal pockets less than four millimeters deep are within the normal range, so he does not write those scores into the record. (21:46; 20:155, 157). * Respondent at least should make a written record that all pockets were less than four millimeters, but he did not even do that much. Not recording the periodontal scores of healthy patients leaves a record devoid of any evidence that the exam was ever performed, and not only should there be such a record, there also should be a record that the periodontal scores were healthy. (4:22, 23; 10:6669). This is found as fact notwithstanding the testimony of Dr. Richard Carl, State's consultative witness, that the State requires its consultative dentists to record on the consultation form only pockets deeper than three millimeters. (4:23). The State's consultation form and a dentist's patient record are two forms of documentation having materially different purposes in this regard. (10:69,70). For all the above deficiencies, Respondent's treatment records for D.T. were below the standard of care. (See also: 9:11,12,15,16 32,91). Respondent testified that D.T. was a pushy and demanding patient. (27:14)> Assuming that to be so, such does not justify Respondent's dispensing with the standard of care for D.T.'s treatment, including record keeping. Respondent also defended his lack of adequate patient record by offer of his symbolic markings already discussed supra. (*The Board amended this finding from that proposed by the Administrative Law Judge by deleting a sentence because it sets forth an incorrect standard of care.)
19. Respondent diagnosed D.T. (and other of the nine patients considered herein, including S.T.) with a condition known as neuralgia inducing cavitational osteonecrosis, popularly referred to by the acronym NICO. (S.T.) at 1:58, 59, 12:140; M.R. at 32:72ff; L.B. at 12:141, and N.F. at 12:147; 12:139, 140; SE3;
Respondent Exhibits U and V; hereinafter abbreviated thusly: RE__). Whether NICO even exists as a pathology in its own right is a question which has provided the source of not an inconsiderable amount of debate within the dental community. (Record as a whole). This nation's leading proponent of NICO is Respondent's witness Dr. Jerry Bouquot, presently the Director of Research at the Maxillofacial Center for Diagnostics & Research in Morgantown, West Virginia. He has been a licensed dentist since 1971, and is Board Certified in Oral Pathology. He specializes in oral and maxillofacial pathology. He has had a long and distinguished career. (12:74; RE120). He is widely and extensively published on the subject of NICO. (SE 25,45;RE 128, 129, 150). According to Dr. Bouquot, "NICO is just the-the jawbone version of a disease that occurs and has been reported in virtually every bone in the human body, as well several animals"." (12:82). However, again according to Dr. Bouquot, NICO is a lesion histologically unique from other forms of osteomyelitis. (SE45). Therein lies the claim by Dr. Bouquot which has generated widespread opposition to, or at least withholding of, acceptance of NICO by the majority of the dental community as a whole. Put in Dr. Bouquot's words, "The real question is whether NICO differs from classic forms of acute or chronic osteomyelitis[?]" Dr. Bouquot wrote in a 1992 article published in Oral Surgery, Oral Medicine, and Oral Pathology, of four conditions he claims supports his contention that the correct answer to that question is "it does." (SE45). First, Dr. Bouquot writes that in "acute osteomyelitis, pain intensity is directly related to the presence of significant suppuration and considerable relief is immediately noted on cortical perforation and free egress of pus from the medullary spaces. Such does not appear to be the case with NICO lesions." Second, "the character of local pain differs between these two diseases. Acute osteomyelitis produces much more intense bone pain on palpitation (tenderness) and is often very painful even without palpitation[.] NICO cavities, while known to trigger lancinating, paroxysmal attacks on palpitation, may be only mildly tender themselves and seldom demonstrate sharp local pain without palpitation." Third, is "the virtual absence of new bone formation or healing . . . . contrary to chronic osteomyelitis. . .[and]. . . a surprising lack of active resorption of nonviable or necrotic bony flakes and spicules." Fourth, "Chronic osteomyelitis typically contains foci of isolated suppuration (acute inflammation) and presents a course of acute exacerbations admixed with periods of quiescence." "True chronic osteomyelitis encompasses a group of diseases usually categorized under the term chronic nonsuppurative osteomyelitis. . . .Each differs substantially from NICO[.] (SE45; all emphases added but the last). It appears that in most instances Dr. Bouquot qualifies the differences between chronic osteomyelitis and NICO which he listed in this exhibit. Additionally, Dr. Bouquot concedes in this article that it is purposed as a "preliminary microscopic evaluation and characterization of a large number  of NICO lesions and to differentiate them from other forms of osteomyelitis." As Dr. Bouquot seems to recognize, 224 tissue samples is not a large enough sampling to provide conclusive evidence. He also wrote of his hope that "enough interest will be generated to lead to controlled prospective studies of the relationship between jawbone infections and facial neuralgias." Evidently there had been none by 1992. Dr. Bouquot, quite forthrightly, includes as a part of his conclusion to the article his statement: "The present analysis, of course, has several flaws that stem from its uncontrolled, retrospective nature.:" Also bearing mention is the fact that this article was published under the journal's heading "Controversies in Oral pathology," itself indicating a large measure of rejection of NICO by members of the profession. The journal invited commentary on the article, and received and published such in the form of a critique written by William C. Donlan, DMD, MA, at the University of the Pacific. He opined as to Dr. Bouquot's paper,"The content of this paper and its theories are . . . . nonscientific." Dr. Donlan concludes "This paper does not define a new pathologic lesion, explain the pain caused by said lesions, or lend any additional credence to this hypotheses."
20. Dr. Bouquot copublished a review of NICO in 1997. (RE 128, 129). It was based on experience with more than 2,000 patients. Dr. Bouquot's premise in this paper included proposing NICO "as a common basis for many of today's facial pain syndromes. . . ." He emphasized that even by then, 1997, "no indepth casecontrolled prospective investigations are yet available." And, he continued, his and his coauthor's presentation was of "hypotheses." Dr. Bouquot wrote under the subtopic of Microscopic Appearance that many NICO tissue samples had fragments "coated by a film of fibrin and may show aggregates of this material, or of platelets, within areas of damaged fatty marrow." but then he wrote "While such features are occasionally seen in routine intraosseous inflammation, they are much more common in NICO." (emphases added.) He wrote in Part II of this same paper (RE 129) "We wish to emphasize, however, that the "NeuralgiaInducing" term in NICO was intended from the start only to emphasize this most unique feature of the disease, neuralgic pain is not a requirement of diagnosis." (Emphases original.) So, not only in 1992, but by 1997, Dr. Bouquot still seems to have been hedging quite a bit in the subject of just what sets NICO apart from other garden variety osteomyelitis. As see, in one fell swoop, Dr. Bouquot emphasizes that the very name neuralgiainducing cavitational osteonecrosis is misleading; that "the most unique feature" (his words) of NICO is not so unique after all. It is no wonder that NICO has been the recipient of such widespread criticism.
21. The State produced the testimony by Dr. Francis V. Howell, to rebut Respondent's proNICO evidence. Dr. Howell has been a dentist since 1950, and an Oral Pathologist almost since then. He has been a Diplomate of the American Board of Oral Pathology since 1956. He, as Dr. Bouquot, has enjoyed a long and distinguished career in his chosen professional field. (32:48, 49; SE 44). Dr. Howell was critical of NICO. He testified that even defining NICO presents difficulty because there is not "very much to it." (32:51). He denies the existence of any verifiable symptomatology involved in NICO (32:54), which seems to corroborate the earlier findings herein that Dr. Bouquot seems to hedge at times when he writes of NICO's distinguishing characteristics. Dr. Howell in his profession as a pathologist, a diagnostician, has himself viewed many specimens sent to him by others suspecting a NICO. He has "yet to see anything that I would call a significant pathological entity." (32:55). Dr. Howell concurs 100% with the opinion of Dr. Donlan, as the latter wrote in the critique of Dr. Bouquot's 1992 article, and described hereinabove. (32:61). Finally, Dr. Howell states that NICO is "absolutely not" widely accepted in oral pathology and oral surgery circles. (32:55). Such is the finding made, based on all the evidence of record. This is not a finding that Dr. Bouquot's theories or hypotheses on NICO are demonstrably untrue, and shall never be proved, but it is a finding that to date the scientific evidence is insufficient to support a finding that NICO is what Dr. Bouquot and Respondent claim it to be.
22. Even if one were to give NICO the benefit of the doubt, Respondent's diagnostic technique to determine D.T.'s NICO was insufficient by Dr. Bouquot's own standards. Respondent took only a panographic radiograph of D.T., whereas Dr. Bouquot prescribes triangulation of periapical films. (RE128).
23. D.T., as in the case of his wife S.T., had a clash with Respondent and Respondent terminated his treatment with D.T. Respondent therefore did not complete the treatment he had planned for D.T.; treatment he had regarded as necessary.
24. The third case is Complaint Number 95135, involving, and filed by patient L.C., sometimes identified by use of his other initials, P.C. or L.P.C. (1:103). L.C. first presented to Respondent's office on or about October 28th, 1993. He was experiencing toothache in the lower left quadrant of his mouth, which is in the area of teeth #18 and #19. (Respondent's records for L.C.;1:102; 2:25, 26). Respondent also did not arrive at a diagnosis based on thorough examination procedures, or provide an adequate treatment plan for L.C. Part of his treatment of L.C. which ensued is based on diagnostic methods (AK, and the computron) which are unsupported by dental science. (2:29, 30; 21:63). He also used xrays, although their diagnostic quality is to be doubted. (21:64; 9:58, 59). Once more, Respondent's diagnostic techniques were not up to the standard of care, and his treatment records for this patient are also below standard of care inasmuch as they have no recordation of treatment justification. (5:58, 60, 65, 69, 70; 9:5658). For example, Respondent's written record of justification for his treatment of L.C.'s tooth #17 (extraction and cavitational surgery) was only another on of his carets. 21:63, 64). Additionally, Respondent's records lack any indication that he did a periodontal examination of L.C.; any record of diagnosis, or any treatment plan. (1:102, 103). As is his custom, Respondent simply kept his treatment records in his memory. (9:58, 59).
25. Respondent extracted L.C.'s tooth #18. (2:5, 8:29; 21:64, 65). L.C. had been to another dentist, an endodontist (a root canal dentist (8:6)). Dr. Joseph Dovgan. Dr. Dovgan had opined that L.C.'s tooth #18 was a good candidate for root canal surgery. (2:33, 34; SE 12). A root canal is performed when the dentist has diagnosed the patient with a disease of the pulp, a soft tissue in the center of the tooth, commonly called the nerve. Root canal surgery removes the pulp and refills the hollow space thereby created usually with gutta percha. (8:6; 30:14). When L.C. was with Respondent he relayed Dr. Dovgan's opinion, and Respondent counseled L.C. that root canals contained a toxic substance, and impair the immune system. (2:32). He also made available to L.C. a book written in opposition to root canal treatment. (2:34, 58). The book is entitled Root Canal Coverup, and was written by George E. Meinig, D.D.S., F.A.C.D. It opposes root canals and claims there are serious health side effects produced by them. (RE 154). This testimony is highly credible and believed based on Respondent's openly stated, record position on root canals. As found in the first Finding of Fact, Respondent does not perform root canals. Further, he recommends against root canals, believing them to be unsafe. In fact, he counsels his patients extensively on his perceived evils of root canals, not only by providing or making available Dr. Meinig's book, but also providing his patients with a wealth of other antiroot canal publications. He even gives his patients a fifteen to twentyminute lecture on the health dangers presented by endodontically treated teeth. He provides all his patients a packet of information on various areas of dentistry, sometimes even mailing the packet to them, before proceeding with treatment. The written materials he distributes to his patients regarding root canal treatment is wholly in opposition. He provides no information in the packet stating that endodontics is safe. (22:55, 60, 66).
26. Respondent does not stand alone in his antiroot canal opinion, and admitted to the record are some journal articles proffered by him at hearing which he claims demonstrate the veracity of his position on this head. One study used bovine incisors as the model. The results indicated that bacteria were able to penetrate into the tubules of the teeth. (RE 133). Another study similarly took endodontically treated human teeth and inoculated them with Streptococcus gordonii. The bacteria invaded the dentinal tubules. (RE 134). A third study evaluated the comparative antimicrobial effectiveness of three root canal sealers. The study opined which sealer was the most effective, which the least effective, and which the middling sealer. Another study concluded that bacteria have more difficulty invading the dentinal tubules of vital (nonendodontically treated) teeth, than nonvital teeth. (RE137). Endodontically treated teeth are sometimes referred to a nonvital because the treatment leaves the tooth pulpless. Finally, one study relied on by Respondent is entitled "Dental implication of brain abscess in children with congenital heart disease." (SE A7). Unfortunately the title of this article is misleading to the casual observer. Upon reading so much as the abstract of the article the reader becomes acquainted with the fact that the author's entitling the article by use of the plural "children" is inaccurate. The study concerns itself with the case history of one eightyearold boy who sadly was afflicted with a congenital heart defect. One anecdotal study, even if soundly done, is insufficient provender to sustain scientific proof. It also bears mention that Respondent highly touts the cleverly titled book The Price . . . of Root Canals, which is Dr. Hal A. Huggins's compilation of materials by Dr. Weston A. Price, going back to the year 1925. (RE 172). Taking the record as a whole it can be found that Dr. Price is a, if not the, leading progenitor of this theory that root canals are unhealthy. The whole of Respondent's evidence to convince that root canal surgery is to be avoided cannot begin to withstand the barrage of State's evidence to the contrary.
27. Properly performed root canal surgery is a very safe, and very effective procedure for treating pulp disease and saving teeth. (30:13,14;SE 23). Eightyfive to ninetyfive per cent of root canals are successful (8:6). The State produced two expert witnesses on the subject of endodontics. Both are, and for many years have been, endodontists. The first was Dr. Stephen Roda; the second was Dr. Leif Bakland. Both are highly credentialed, respected and accomplished in the field of endodontics (SE22, 36), and their testimonies were far and away the most highly credible and persuasive of record concerning the subject of root canals.
28. The State does not dispute that bacteria can remain inside the tooth following endodontic treatment. (8:7). Nor does the State dispute that bacteria in the tooth can migrate into the dentinal tubules. However, if the root canal has been done properly the bacteria there are denied nutrients, cannot grow, and cannot produce an infection. (8:7; 30:16, 17). In some cases of failed root canal treatment bacteria can escape from the tooth (30:20, 21). What happens in the vast majority of those cases is the bacteria will develop a localized inflammation or a dental abscess. (8:7; 30:22). In those rare instances further endodontic treatment can correct the problem. (8:7; 30:26, 27).
29. Dr. Bakland's direct testimony, taken with the other evidence of record, convincingly discredited the hearsay evidence in Dr. Meinig's book as the latter's opinion "that root canal treated teeth can be the source of numerous physical ailments" based on research that was done during "the early part of the [twentieth] century, " "the dark ages of research." Dr. Bakland concludes that there is "absolutely no scientific evidence whatsoever" to support Dr. Meinig's opinion. (30:24). Dr. Bakland similarly dismissed the hearsay statement of Drs. Huggins and Price in The Price. . .of Root Canals, adding his characterization that the opinions therein expressed are "extreme." (30:25). The opinions Drs. Huggins, Price and Meinig are not only dated, but are unsupported by any credible scientific evidence of record. The State of Colorado revoked Dr. Huggins's dental license in 1996 for his unprofessional practice relative to silver amalgams, a topic to be addressed infra. (RE Z).
30. There is, however, some credible evidence of record (albeit not entirely undisputed, See: 8:82; RE A2) that in rare cases bacteremias originating in the oral cavity, and in some cases from the area of improperly endodontically treated teeth, can cause bacterial (or infective) endocarditis. (30:11;SE 23; RE Z). A bacteremia is simply "bacteria that get into the blood stream." (30:12; SE 23). Also, improper endodontics is not the bacteremia's only passport from the mouth to the bloodstream. Bacteremias are a common occurrence when one flosses one's teeth, or chews one's food, regardless of the presence of absence of endodontically treated teeth. (8:81). Unfortunately, Respondent seizes upon the evidence linking bacteremias from endodontically treated teeth to endocarditis (RE G,H,K,L, M, N, and 189), and then attempts to extrapolate from it that bacteremias can migrate from the mouth to all distant parts of the body, and in a whole host of ways adversely affect a person's systemic health. (11:97; RE A2). this opinion fits within the much broader theory, to which Respondent and a comparatively small minority of dentists subscribe, known as the focal infection theory. While ample scientific evidence exists to make adherence to the position of bacteremias relative to infective endocarditis reasonable, if not entirely undisputed, there is not even nearly enough such evidence to make reasonable Respondent's subscription to the focal infection theory.
31. The focal infection theory first appeared on the medicodental scene in full flower in 1910, as presented by British physician Dr. William Hunter. (SE 23; RE Z). It caused quite a buzz in the dental world for a few decades, but now is generally held in disrepute, regarded by the majority of dentists and doctors as only an historical curiosity. The theory (its very name suggests lack of scientific proof, else it would be elevated from the realm of the theoretical) posits basically as follows: a focus of infection can release bacteria into the body, which bacteria or their byproducts then can circulate to virtually any distant site or organ of the body and there cause or exacerbate various systemic diseases. (8:8; 11:97; RE Z). The focus of infection for present purposes would be the teeth. So back in the early part of this century the wholesale extraction of endodontically treated teeth and teeth with fillings in them was a widespread phenomenon. The adherents to the focal infection theory believe that endodontically treated teeth are a risk factor in several human diseases including, but not limited to, rheumatoid arthritis, multiple sclerosis, and endocrine imbalances. They believe cavitations (described hereinabove) are risk factors for the same ailments and hyperthyroidism as well. (11:126). Such being the theory it is curious that extractions are favored over root canals by dentists such as Respondent, when one considers that an extraction, being far more traumatic to the patient than a root canal, creates a much greater risk of a bacteremia. (SE 23).
32. Today the focal infection theory is not seriously regarded but by a small minority of dentists including Respondent. The very research methods of the focal infection theorists have been shown to be fatally flawed, calling into question all conclusions thereby reached. (SE 23). Also, it is not merely the testimonies of the State's experts in this case, Drs. Roda and Bakland, that the focal infection theory is totally bogus (although those do add substantial weight to that finding of fact (See: 8:714; 30:10; RE Z), it appears that the publicists of this theory themselves do not push their product with any significant degree of confidence. One editorial article tendered by Respondent and admitted, contains the following statements: "There is far more to consider than bacterial endocarditis as a consequence of bacteremia of oral origin. There is also some evidence that microbial fractions, rather than whole cells, may play a part, perhaps in some form of immune complex, in systemic forms of inflammation. . ." And: "To date, there seems to be no clear correlation between the fact or level of a bacteremia and the incidence of a linked systemic disease, even for the favorite, endocarditis." (RE A2, emphases added). There appears in the "Journal of Clinical Periodontology" (1984) the article "Plaque and systemic disease: a reappraisal of the focal infection concept." (RE A1). (Note here it is not a "theory" but a "concept," an idea if you will). The authors early on concede that as to proof of the focal infection theory "the accumulated evidence seems contradictory." They offer that differences in the microbes and differences in their hosts "may provide a possible explanation of the inconstancy of focal infection phenomenon." They go on to posit "at least 3 separate mechanisms linking secondary, metastatic local or systemic disease to a pathological oral microbial depot." As to metastatic inflammation due to immunological injury they write: "It is not known whether dental infections are of clinical significance with regard to the pathogenesis of this immunological type of focal infection; the possibility is, however, far from remote." (Emphasis added.) As to antigenantibody interaction, immune complexes, they write:
"Direct proof of th[e] association [between odontogenic infections with sterile metastatic inflammation] is scanty." "Yet another possible example of focal infection by immunological injury is. . . ." A third example is provided by an experiment in which it has been shown that uveitis might result from..." "[I]t has been suggested that in some cases meningitis might be the result of immune complex mediated injury secondary to dental foci." "Although it has to be conceded that proof of a causal relationship of dental foci of infection and metastatic immunological injury is far from complete, the available evidence appears to support such a hypothesis." Under their subheading of metastatic injury due to microbial toxins, the authors write:
"Although direct proof is lacking, the accumulated circumstantial evidence appears to warrant the tentative conclusion that pain and loss of nerve function might be due to microbial toxins from dental foci." (RE A1; all emphases added). These are not hardly the type of statements that will naturally induce conviction in the minds of reasonable persons.
33. Moreover, Respondent tendered another evidentiary exhibit to support his putting the focal infection theory into his practice, and the exhibit was admitted as RE A5. Strange as it may seem, this exhibit provides significant additional proof of the State's position, while at the same time undermines that of Respondent. The exhibit lists a number of abstracts from dental journals on the topic of the focal infection theory. One article concludes, according to the abstract, "The application of modern techniques to these [focal infection] concepts makes them topics of historical interest only." Another wrote: "The bacteriologic studies of Price [Dr. Weston a. Price, See: RE172, and Finding of Fact ##25, 27, supra] and Rosenow, which formed the foundation for focal infection enthusiasts, could no longer be used to "rationally" support the focal infection theory and the therapeutic wholesale extraction of teeth." A third article "cites the invalidity of a number of the key bacteriological studies prior to 1940 that were used to help establish the focal infection theory." A fourth abstract appearing at RE A5 is of a study that "demonstrates that properly cleaned root canals do not contain unhealthy or diseased periapical tissue and are not sites of focal infection." A fifth writes: "[I]t was concluded that modern nonsurgical endodontic treatment produces a remarkable low incidence of bacteremia. When root canal instrumentation was confined to the root canal, no bacteremia was detected." A sixth argued "that there is no medical or economic evidence to support the extraction of pulpless teeth." The author concluded that in the cases that were the subject of her or his study, endodontic treatment was to be preferred over extraction. And, "The increased cost of restoration of missing teeth when teeth are needlessly extracted was also vividly presented." This evidence goes a long way to help establish the fact that root canal surgery has not the baleful consequences Respondent claims, and that the dwelling place of the focal infection theory seems destined forever to remain at its present location, far outside the area of accepted and reputable medicodental scientific circles.
34. These recent findings of fact regarding endodontically treated teeth and the focal infection theory illuminate the reasons why Respondent counseled L.C. against his allowing Dr. Dovgan or anyone else to perform root canal surgery on L.C.'s tooth #18, and why those reasons were unsound and unprofessional. Endodontic therapy in all likelihood would have saved L.C.'s #18, and that therapy clearly would have been by far the better option for L.C., as salvaging any tooth when possible is categorically better than losing it. However, overcome by the amount of illegitimate information he was provided on the subject by Respondent, L.C. gave way, and opted to have Respondent extract #18, which was done. (2:37, 67).
35. Respondent also performed cavitational surgery on L.C.'s tooth #4, which previously had root canal surgery. (2:38). Respondent's radiographs of that tooth show no call to have had that surgery performed. (2:61, 62, 65). Nor was #4 giving L.C. any symptoms such as pain. (2:30). Respondent's reasoning, told to and accepted by a trusting L.C., was that extraction of his #4 tooth might help alleviate the pain L.C. was experiencing in his tooth #19. (2:39). While it is true that in some cases pain can be referred from one tooth to another, pain cannot be referred from a tooth in the patient's upper right quadrant to a tooth in the lower left quadrant. (5/6:67 68; 8:33, 34). Respondent testified that he extracted tooth #4, based on the diagnosis made with the computronic electrodermal screening and AK, because that tooth was interfering with L.C.'s "electromagnetic system of the body," "there was an interference focussed [sic] in that area." (21:78;
27:134, 135). Respondent's record of this diagnosis was a caret. (21:64). Extraction of #4 was unwarranted, and it did nothing to help L.C.'s tooth #19, in which L.C. eventually had Dr. Dovgan perform root canal surgery, which resolved the problem in #19. (2:39).
36. After extracting #4 from L.C.'s mouth, Respondent placed a bridge from tooth #3 to tooth #5. The bridge was inadequate. It had open margins and the subject areas had periodontal involvement that, to be up to the standard of care, should have been addressed before any bridge was placed there. (4.9, 10, 42, 43; SE 19). Respondent's treatment records lack any indication that he performed a periodontal examination of L.C. prior to placing the bridge.
37. After having the bridge placed in his mouth, L.C. continued to experience pain. By that time he was inclined to return to Dr. Dovgan, which he did. Dr. Dovgan endodontically treated ##3 and 5, and thereafter L.C. had no problems with those teeth. (2:39;SE 12).
38. Respondent not only extracted L.C.'s ##17, and 18 he also performed cavitational surgeries at those sites. Respondent based these surgeries once again on the results of his diagnosis arrived at with the use of the computron and AK. (27:127132). That these methods within dentistry are not diagnostically sound has already been found. Nothing in Respondent's treatment records for L.C. or on his radiographs of these areas justify his having performed the cavitational surgeries. (5/6:57, 59).
39. Respondent failed ever to place a bridge at the former site of tooth #18. Such a bridge should have been installed in L.C.'s mouth in order for tooth #15, the tooth that formerly had occluded with #18, then had no tooth opposite, which, in the fullness of time, could lead to serious problems for L.C.'s tooth #15. (9:60,61). Respondent's defense that he was prevented from placing the bridge owing to the fact that L.C. never returned to him for further treatment is false, as can be seen by Respondent's own records showing that L.C. did return.
40. Based on the findings of Respondent's treatment of L.C. it is found that the Respondent's treatment had a significant negative impact on the quality of L.C.'s life which he can never outlive.
41. The fourth case is Complaint Number 95312, and involves patient D.S. D.S. presented at Respondent's office on October 22nd, 1990. (27:103). Respondent's treatment plan for D.S. was to remove all of D.S.'s silver amalgams and crowns. His diagnosis was "that he had several silver fillings, mercury fillings, and they were fairly large." "He had several large fillings, he had some crowns, he had a crown on the upper right side, he had two crowns on the upper left side, he had two crowns on the lower left side, and on the and that's all. But the rest were large fillings. Silver mercury fillings." (27:104). D.S. came to Respondent with the desire for the Respondent to remove the mercury from his mouth which was contained under his crowns and in his silver amalgams. (20:172; 27:;105). However, Respondent made no record notation of this. Even though he believes that information important, he did not write it in the records because "it was so obvious to us." As always, Respondent did not write down much of anything in his records, but again he put red marks on the tooth chart, meaning to him that the filling needed to be removed, and then after the filling was removed, he erased the red mark and put a blue mark in its place, meaning to him that procedure had been completed. (27:106). Once again it is found that this system of record keeping is below standard of care. Notwithstanding the fact that every one of D.S.'s silver amalgams were serviceable restoration, Respondent thought the treatment of removing all those fillings, as well as areas under the crowns, to rid D.S.'s mouth of mercury was a wise course and the one he proceeded to follow. (21:12; 20:172 27:106). Therein lies another tenet of Respondent's practice fillings containing mercury in a patient's mouth can be harmful. As a matter of his practice Respondent declines to use mercury in his restoration, as has already been found. (See: Finding of Fact #1; 20:5). He also, as he did in this case, will remove existing silver amalgams. In counseling his new patients on the use of silver amalgams, besides giving them his opinion of their undesirability, he provides them information contained in his packet of information described earlier herein. The information in the packet, while heavily weighted against the use of silver amalgams, does provide the patient with a bit of information stating that those restorations are safe and effective. (SE 30).
42. That mercury is a toxic substance is not disputed by the parties. (13:24). Nor is it disputed that every dentist should take all reasonable precautions to avoid unnecessary exposure to mercury when treating with dental amalgams. (RE 109; A10; SE 17). Nor is it disputed that what is typically referred to as a silver amalgam (a filling) is an alloy, the content of which is approximately fifty per cent elemental liquid mercury. (3:13). The silver amalgam has been the most popular and effective restorative material in dentistry longer than the past 150 years. Billions of silver amalgams have been placed in patients' teeth in the United States of America alone. It is estimated and here found that in 1979 approximately 157 million silver amalgam restorations were put into patients teeth. Still, the use of these amalgams has declined in more recent years to numbers between 90 and 100 million annually; however, not because of their falling into ill repute, but because people have been having less cavities. Despite the excellent track record of silver amalgams, from time to time concerns have arisen as to their safety. As early as 1850 some dentists claimed that removing these fillings could miraculously cure chronic diseases in patients. Today, a comparatively small minority of dentists, including Respondent, do not use, and will remove, silver amalgams in the belief that the mercury therein contained poses serious threats to the patient's systemic health. (21:106; SE 15; RE 111; 118).
43. Respondent produced as an expert witness Dr. Fuller Royal, a physician from Nevada. Dr. Royal advocates the removal of every silver amalgam filling. (19:77). He observed in testifying: "If you took onehalf gram of mercury and dumped it is a tenacre lake, they would condemn that lake. You're exposing the body to 24 hours a day of mercury vapor. That's an accumulation of mercury over many years. It's ridiculous. It makes no sense at all." (19:62). Dr. Royal's mercuryinthelake statement does not at all bear on the question of safety of dental amalgams. Further, Dr. Royal utilizes many of the same tools and methods used by Respondent to reach diagnoses, tools and methods which have already been addressed herein and found unreliable in dentistry. (19:20, 26). He also promotes the inaccurate negative opinions of endodontics, a position which has already been discussed and found wanting. (19:37, 40, 76). He was not a convincing witness. (Other of Dr. Royal's testimony lacking in credibility will be addressed infra in the findings relative to acupuncture.)
44. Respondent also produced as an expert witness at hearing Dr. Boyd E. Haley, a nondentist research scientist and Chairman of the University of Kentucky College of Pharmacy. (13:13, 56; RE 112, 131). Dr. Haley contends that the mercury in silver amalgams is released and enters the body. (13:27). He holds that this mercury can exacerbate exiting Alzheimer's Disease, Amyotrophic Lateral Sclerosis (ALS, or Lou Gehrig's Disease), and multiple sclerosis, and that silver amalgams may be a significant risk factor to the onset of ALS and multiple sclerosis. He holds that many neurological diseases can be linked to the presence of silver amalgams in the person so afflicted. (13:35, 36, 44, 45). Dr. Haley also adheres to the focal infection theory. (13:85). Dr. Haley has conducted research on the theory of the harm of silver amalgams. He, along with Murray J. Vimy, Fritz L. Lorscheider, and two other, published their findings in the 1997 edition of "NeuroToxicology." The research was performed using rats as subjects. They concluded "that chronic inhalation of lowlevel [mercury] can inhibit polymerization of brain tubulin essential for formation of microtubules." They discerned a similarity between this effect and the condition of brains afflicted with Alzheimer's disease. (RE 112).
45. Dr. Haley's colleagues, Vimy and Lorscheider, Department of Medical Physiology and Department of Medicine, Faculty of Medicine, University of Calgary, respectively, conducted other research in this area using sheep as subjects, and their research was published in the journal of the Federation of American Societies for Experimental Biology (FASEB) in 1989. They concluded that dental amalgams "can be a major source of chronic [mercury] exposure." They also concluded that radioactive mercury in the silver amalgams put into the sheep teeth appeared in various organs and tissues within 29 days. Also in that study Vimy and Lorscheider opined that a "sheep is a suitable experimental model for the purpose of our investigations because it exhibits molar chewing mechanics that are similar to those of humans." (RE 118). Coming from individuals who claimed to have performed serious research, this statement is astonishing. ADA spokesman and pediatric dentist DR. R. Heber Simmons, referencing the Vimy and Lorscheider study, pointed out a few fact about the sheep which are rather common knowledge. "Sheep. . . . are ruminants, which regurgitate their food and acid from their stomachs and chew on the cud for up to eight hours a day." (SE 16). Yet Vimy and Lorscheider went on and published their findings from more experiments with sheep. One is in an article appearing in the 1990 edition of the journal of the American Physiological Society. (RE 167). There it is concluded, based on experiments with five pregnant ewes, that use of amalgams "in pregnant women and children should be reconsidered." (Emphasis added.) Another is in an article appearing in the 1991 edition of the journal of the American Physiological Society. (RE 116). Therein they concluded that exposure to mercury released from dental amalgams "may have the potential to precipitate alteration in renal function." (Emphases added.) Eventually the dawn broke, and Vimy and Loscheider became skeptical of their own sheep studies. They confessed: "Recently we used an experimental animal model in which sheep received dental amalgam fillings containing radioactive [mercury] tracer. It is unknown whether the frequency of eating, molar chewing pattern, or type of food influenced the degree to which [mercury] was released from sheep dental amalgams, or if the results were directly comparable to humans." (RE 117). Hence, they turned to monkeys. Still, their conclusion, published in another FASEB journal, after looking at the monkeys, was stated using rather tepid wording: "Advocacy by the dental profession. . . . that [mercury]based silver amalgam is stable and systemically biocompatible is not supported by our animal studies. . . or by the pathophysiological consequences of amalgam usage that we demonstrated." (RE 117; emphasis added). This is not what one would consider a ringing denunciation, but rather a nonfinding. In 1995, Vimy and Lorscheider were at it again, this time publishing a paper in the FASEB journal detailing "collective results of numerous research investigations over the past decade" (including their own). (RE 111). They concluded that the continuous release of mercury from silver amalgams is the major contributor to mercury body burden, and that the experimental evidence indicates that the amalgams have the potential to induce cell or organ pathophysiology. They do concede in closing that "human experimental evidence is incomplete at the present time." (RE 111). Professor Lorscheider also coauthored an article published in 1992 in the journal of the Society of Toxicology, in which the question was posed:
"[W]hat, if any, are the longterm health consequences resulting from exposure to mercury [via dental amalgams?]"
Their answer: "we do not yet know the answer to this question." (RE114).
46. Dr. Robert L. Sibelrud published an article, the contents of which were taken from his doctoral dissertation, in the October, 1989 edition of the "American Journal of Psychotherapy." (RE 110). Relying heavily on the early work of Vimy and Lorscheider, Sibelrud summarized:"The data here suggest that the release of mercury vapor from dental amalgams may cause mercury toxicity and produce psychological distress symptoms. Dental mercury. . . may be a significant health hazard. Psychotherapists should consider mercury toxicity as a possible cause in the treatment of . . . . " (Emphases added.)
47. One might suppose that if silver amalgams pose a toxic threat that perhaps dentists themselves who place them routinely over careers spanning decades might contain in themselves some evidence of this. Yet, Respondent's own evidence discounts that conclusion. In an article published in 1992 in the journal "Clinical Toxicology," entitled "Toxicity of Mercury From Dental Environment and From Amalgam Restorations," this conclusion was reached: "The preponderance of currently available evidence indicates that when reasonable precautions are used, the mercury in dental amalgam is not a significant health hazard to most dental personnel or patients." (RE 115).
48. And finally, Respondent calls attention to the risk of harm to human health occasioned by eating mercuryladen fish (RE 113), and from mercury vapor released when corpses are cremated. (SE 30).
49. The State presented much evidence to support the finding of safety in the use of dental amalgams.
50. One study admitted into evidence is published in 1997 in the journal "Critical Review Oral Biological Medicine." (SE 32). the authors are J.R. Mackert, with the Medical College of Georgia, Augusta, Georgia, and A. Berglund, with Umed University, Umed, Sweden. It is fitting to mention this State's evidence first because it convincingly points out the errors in the research methodology of Vimy and Lorscheider, which produced the research upon which Respondent relies. Macker and Berglund established the fact that the mercury exposure method Vimy and Lorscheider used to test their subjects was seriously flawed, and that they first had to skew material assumptions to an extreme degree to be able to arrive at their conclusion.
51. The United States of America, Department of Health and Human Services, in 1993, published an extensive and detailed report on the question of dental amalgam safety. (SE 14). The report was authored by a committee constituted of twelve professionals in various occupational fields that touch and concern the issue. Highlights of the report include the following. "The U.S. Public Health Service believes it is inappropriate at this time to recommend any restrictions on the use of dental amalgam, for several reasons. First, current scientific evidence does not show that exposure to mercury from amalgam restorations poses a serious health risk in human, except for exceedingly small number of allergic reactions." The committee, in reaching these findings, were not unaware that dental amalgams do in fact release "minute amounts of elemental mercury," and "that a fraction of the mercury in amalgam is absorbed by the body[.]" "People with amalgam have higher concentrations of mercury in various tissues (including blood, urine, kidney and brain) than those without amalgam. Also, a small proportion of individuals may manifest allergic reactions to these restorations." However, the committee also noted that mercury is absorbed from many sources, including food (especially fish) and ambient air. The key question presented to the collective mind of the committee was whether the additional amount of mercury the body absorbs from silver amalgams poses a health risk. They concluded that it does not.
52. The World Health Organization released its Consensus Statement on dental amalgams in 1997. (SE 33). That body was agreed that dental amalgam restorations are safe. They noted that "components of amalgam and other dental restorative materials may, in rare instances, cause local sideeffects of allergic reactions. The small amount of mercury released from amalgam restoration, especially during placement and removal, has not been shown to cause any other adverse health effects."
53. The State produced the expert testimony of Dr. Chakwan Siew, Director of Toxicology at the American Dental Association, in the Research Institute of the Association. (29:10, 11). Dr. Siew received his Ph.D. in Pharmacology in 1974 from the University of Colorado Medical School. He underwent postdoctoral education in Toxicology/Pharmacology at Stanford University Medical School from 19741977. He is extensively published in his field and a member of several professional societies. (SE 31). Dr. Siew's position, stated in a nutshell, is that silver amalgams are safe. (29:17). He reasons that the amount of mercury that is released from the amalgam "is so small, minuscule, that you it's not at the range of dose that's considered to be toxic." (20:29). Dr. Siew also disagreed with the rat study of Respondent's expert witness Dr. Haley, noting that the mercury exposure method he employed was faulty in that it exposed the rat subjects to unrealistically high levels of mercury vapor. (29:4048). Dr. Siew also opined that there is no evidence that silver amalgams are a causative or risk agent in the onset or exacerbation of multiple sclerosis, arthritis, or mental illness. (29:48,49,92).
54. Two among the scores of journal articles authored or coauthored by Dr. Siew on the subject of dental amalgam safety are of evidence. (SE 34, 35). Dr. Siew also pointed out the errors of the methodology of Vimy and Lorscheider, as had Macklert and Burglund. (See: Finding of Fact #50, supra).
55. The American Dental Association, as of this hearing, continues to maintain the safety of dental amalgams. (SE 40, 41).
56. There is no convincing scientific evidence, dental, toxicological or other, to support a finding that a dentist who, as a part of his or her practice, places silver amalgams in patients, poses a health risk (other than the aforementioned occasional allergic reaction) to herself, himself, or patients.
57. Facts can be very stubborn things sometimes, and within the issue of dental amalgam safety two repeatedly present themselves to the mind of this factfinder-one in favor of the State and one in favor of the Respondent. They are: for the State: the nearly centuryandthreequarters history of billions and billions of silver amalgams being placed in humans without the transpiration of any more evidence of a danger posed by them than Respondent has produced; and, for the Respondent: mercury is toxic, and some amount of mercury from silver amalgams is released into the mouth and absorbed by the body, albeit an inconsiderable amount. Considering these two facts and the totality of record evidence on this issue, the following additional facts are found.
58. It is not below standard of care, in limited circumstances, for a dentist to remove silver amalgams to rid a mouth of mercury, but it is below the standard of care if the removal is occasioned by the dentist informing and advising the patient that removal of the amalgam will prevent, relieve symptoms, or affect cures of systemic diseases or disorders such as multiple sclerosis, diabetes, arthritis, Alzheimer's disease, etc. It is also below the standard of care for a dentist to remove silver amalgams as a result of the dentist's withholding full counsel from the patient as to the lack of scientific evidence that the mercury in the amalgam is, or could be, harmful to the patient.
59. The issue now resolves to a question having a very fine point: If a patient, having an existing silver amalgam, without any allergic reaction thereto, presents to a dentist possessing prior information on both sides of the question regarding safety of silver amalgams, makes a request of the dentist to remove the silver amalgam, which request is entirely prompted by the patient's opposition to having the mercury in vivo, is it substandard dental care for the dentist then to remove the silver restorative material? In the above factually restricted scenario this factfinder thinks not, provided the dentist first informs that patient fully, including advising of the lack of evidence that removal of the silver amalgams will affect cures, relieve symptoms or avoid onset of diseases or disorders, e.g., multiple sclerosis, diabetes, arthritis, renal failure, or Lou Gehrig's Disease. A dentist removing and replacing the silver amalgam in this situation is no more below standard of care than a dentist removing and replacing the same silver amalgam because the patient desires its replacement by a more aesthetically pleasing toothcolored material.
60. For that matter, in these situations, removal of silver amalgams from patients who are fearful of having mercury inside their mouth is no more below standard of care than the entire range of cosmetic or aesthetic dentistry. There is no rational basis of distinction to separate the taking of money from a patient to remove mercury from her or his mouth, and taking money from another patient to whiten the tooth surface by a shade or two. While the first patient may be actuated solely by fear, howsoever irrational, of mercury poisoning, the second may be actuated solely by vanity.
61. One might maintain that even in the above limited fact scenario it is below standard of care to remove and replace the silver amalgam because there exists in doing so the risk of harm to the remaining tooth structure, a potential which renders the procedure professionally unjustifiable simply as a means of assuaging the patients fear of having mercury in the mouth. Yet is there not the existence of some potential for harm to any patient's dentition each time the patient opens wide and the dentist inserts hands, needle and tools, and commences surgery? The undersigned thinks so. Certainly there is an equal potential for harm to the remaining tooth structure in cases of removing and replacing silver amalgams either in the one patient loathing mercury or the other patient loathing unsightliness. There is no good reason to find the former practice unacceptable while freely allowing the later.
62. These recent Findings of Fact (##5661) are not inconsistent with the American Dental Association's position so far as that group has enunciated on the subject. The ADA stated in its June, 1987 Release (SE 30) that "[T]he removal of amalgam restorations from the nonallergic patient for the alleged purpose of removing toxic substances from the body, when such treatment is performed solely at the recommendation or suggestion of the dentist, is improper and unethical." This pronouncement was reaffirmed by the ADA in September of 1992, in one of its advisory opinions published in its journal (JADA) that month. (RE A8). And most recently, in May of 1996, the ADA again published its opinion in the JADA of that month, stating such through its General Counsel, Peter M. Sfikas. "[A} dentist who removes amalgam at the request of a patient or a patient's physician is not necessarily acting unethically." The dentist can ethically remove serviceable silver amalgams "under certain limited circumstances." Attorney Sfikas, perhaps because of his education and professional background, did encourage any dentist removing silver amalgams in the limited circumstances discussed, obtain the patient's informed consent before the procedure is undertaken, and make appropriate record of same. (RE 104).
63. Now return can be made to the specifics of D.S.'s case. D.S., as has been found already, did present at Respondent's office predisposed to the removal of his silver amalgams out of his concern over their mercury content, and hope that removing them would abate the suffering from allergies he was experiencing (not allergy to the amalgams). (21:12). Respondent made no record of that however. (Respondent's treatment records of D.S.) D.S. was not allergic to his existing amalgams. (1:86). *At the request of D.S. his silver amalgam restorations were removed. (*The Board amended this finding from that proposed by the Administrative Law Judge by deleting the final two sentences and adding a new sentence to more accurately reflect the records.)
64. Respondent's treatment records for D.S. contain no periodontal evaluation notes or charting, and review of Respondent's panorex radiograph indicated D.S. had undergone some significant bone loss. (1:85, 9:49, 50). Respondent's records do not even indicate any periodontal concerns.
65. Respondent, so far as his records and the evidence indicate, never cleaned D.S.'s teeth, either prior to commencement of treatment or during the course of his treatment. (9:53).
66. The treatment that Respondent performed on D.S. was extensive treatment on over twentyone teeth yet he never took any preoperative study models (diagnostic casts) or performed an occlusal assessment. (1:91; 9:5155). Respondent assessed D.S.'s vertical dimension and occlusion by use of a machine known as a myomonitor. (27:115). A myomonitor is not used by most dentists in Arizona. (20:179). A myomonitor is of value to diagnose temporomandibular disorders, but not as a treatment modality. (9:55; 27:124; SE 29).
67. During his treatment with Respondent, D.S. had major problems with the many restorations placed in his mouth by Respondent. Respondent had to do corrective work on the restorations three times himself, but never provided satisfaction. Subsequent to his treatment with Respondent, D.S. went to no less than four other dentists to rectify Respondent's work, which required extensive additional treatment. (1:92, 100; 5/6:305; SE9, 10, 11).
68. The fifth case is Complaint Number 95178, and involves patient Mildred Rauen. Ms. Rauen waived her confidentiality as to this proceeding, and expressed her desire to be referred to and addressed by her name. (15:127, 128). She did not file her complaint herself; it was filed by the Board of Dental Examiners after motion to do so was made and carried. (1:14, 63; 25:56, 148). Her case was brought to the Board's attention by her letter to the Board complaining that Respondent had overcharged her for his treatment. (10:137, 138). The Board, in turn, contacted Respondent, and consequently Respondent refunded money to Ms. Rauen, and the monetary dispute then was resolved. (15:142, 143, 173, 174). However, the Board had other problems with Respondent's treatment of Ms. Rauen, and pursued those matters.
69. Ms. Rauen is a woman of distinguished years, and when she presented to Respondent she had no upper and only four lower teeth, two on one side which previously had been endodontically treated (##28 and 29), and two on the other side which had been crowned (##20 and 21). (15:177, 178). She was experiencing no dental problems, and the dentures she had were satisfactory to her when she first went to Respondent. (15:177, 178). She suffered from rheumatoid arthritis at the time. Although she did not go to Respondent "counting on" him to cure her arthritis, she was "hoping" that he would (15:144, 183; 20:102). She had heard of the idea that teeth having had root canal surgery can cause bacteremias and result in disease and disorders to the body. (15:180).
70. Respondent did not "promise" Ms. Rauen a cure for her arthritis. (15:145). Respondent did, however, encourage Ms. Rauen in her belief in the possibility that his extraction of her two endodontically treated teeth could "help" or "cure" her arthritis. Respondent did so by his counsel with her and by his habit of providing Dr. Meinig's book Root Canal CoverUp. (9:41;14:161165; 20:102, 108, 109, 25:38). Respondent's diagnosis confirming his idea that the root canal teeth were a problem, was arrived at by use of his computron, and AK. (20:107, 27:7981, 83). That neither the computron nor AK has any legitimate use in dentistry, including diagnostic, has already been found. (See:
Finding of Fact ##8, 9). In his testimony relative to Ms. Rauen, Respondent revealed an aspect of his practice that is both curious and explanatory of his scant record keeping. Asked if he recorded in Ms. Rauen's patient records the results of his AK testing, he responded that he did not. He said, "I don't normally write that down because I do it so routinely." (27:79; emphasis added). Thus it is evident that the likelihood of Respondent documenting a given dental practice on a patient declines concomitantly with the increase of his frequency in performing the procedure. That observation alone raises concern. It could reasonably be supposed that far less mischief would be occasioned by a dentist's remission in recording results of a procedure he or she rarely performs, or only once performed, than failing to record procedures regularly utilized.
71. Respondent extracted Ms. Rauen's two endodontically treated teeth, and replaced the crowns she had on the other two. (1:62;15: 184). The extractions resulted in absolutely no improvement of Ms. Rauen's arthritis. (20:112, 113). There is no evidence to establish as fact that Respondent's dental treatments can cure or alleviate the pain of arthritis. It is not a treatment for arthritis, and the evidence shows Respondent was not treating arthritis, but was making false claims about what his dental treatment could do.
72. Respondent then made a new lower denture for Ms. Rauen which poorly fit. Ms. Rauen's dentures "rocked back and forth like a seesaw," and she could not chew with them. (15:170; 20:111).
73. There was no sufficient basis for extraction of the endodontically treated teeth. Facts discounting the idea of Respondent's that endodontically treated teeth should be removed already have been adequately found herein. There was no other reason for the extraction of Ms. Rauen's root canal teeth; indeed they were in very satisfactory condition at the time Respondent removed them. (5/6:46, 47: 8:15, 16; 9:37, 40). Extracting these two teeth was below the standard of care. (5/6:283; 9:37, 97) Extracting Ms. Rauen's perfectly good teeth in this case was even more egregious since doing so left her edentulous on that side, thereby depriving her of the only teeth there that could have served to help stabilize a denture. (9:97). This at least was partly responsible for the "seesaw" effect of her new denture.
74. The State argues that Respondent, in removing teeth ##28 and 29, once again stepped outside the practice of dentistry, and "attempted to treat a medical condition." (Post Hearing Memorandum, p. 22). However, for the same rationale expressed hereinabove as to that claim in the case of Complaint 95083, S.T. (hyperthyroidism), it is found that Respondent was not practicing outside the scope of dentistry by treating arthritis. He was, again, practicing dentistry, but making false and unsubstantiated claims or representations about what could be accomplished by his dental treatment.
75. Respondent replaced the crowns on Ms. Rauen's teeth ##20 and 21 because of his diagnosis using the amalgameter. The teeth were not decaying, the crowns were not failing, and there was not other pathological indication for removing the crowns, but the amalgameter told Respondent the crowns were "negative." (20:103). That the amalgameter is not generally accepted as a diagnostic tool in the dental community has already been found.(See: Finding of Fact #5).
76. Respondent also performed a surgery on Ms. Rauen's maxillary arch known as a "tissue trim." (20:106). His records contain no indication of why he did this. They contain only a blue line and the monetary figure of "$750." (20:106, 107).
77. Respondent's treatment records for Ms. Rauen are below the standard of care for dentists. (8:16; 9:36, 95). They contain no basis for the treatment done on Ms. Rauen (9:40). They contain no documentation of a clinical examination supporting his treatment. (5/6:46). They contain no periodontal charting. (5/6:45, 46). They contain no diagnosis for any of the treatment plan. (1:69). Nothing in Respondent's treatment records indicate why he extracted ##28, and 29. The records, such as they are, consist of a "5" and a "15," which Respondent, but few others, would know as amalgameter readings showing "negativity," and his little red and blue colors. (20:104, 105).
78. The State complained against Respondent's use of a testing method performed by a Mr. Jess Clifford in his laboratory in Colorado Springs, Colorado, a method he calls materials reactivity testing. Respondent used this test for evaluation of the compatibility of certain materials he might put inside his patients' mouth, including Ms. Rauen's and others in these consolidated complaints. Mr. Clifford's process claims to test a patient's blood serum to come up with information about that patient's individual sensitivities so that least offensive materials can be chosen and used in their treatments. (14:26, 32,40; RE 139, 140, 141, 170). The State attacked the reliability and scientific basis of Mr. Clifford's test with a hearsay report from a Dr. Siriganian at the United States of America's Department of Health and Human Services. (SE2). Mr. Clifford testified and produced several documents as well as videotape recording telling of his tests. It became clear from the direct evidence of Mr. Clifford that the exhibit introduced by the State was woefully confused as to what type of testing Mr. Clifford conducts at his laboratory. The letter from Dr. Siriganian criticized tests that Mr. Clifford does not conduct, and is therefore not only hearsay, but irrelevant. Without finding that Mr. Clifford's testing has a proven scientific basis and is reliable, it is found that the State failed to convince this factfinder that Mr. Clifford's test has no scientific basis or is unreliable, as alleged.
79. The sixth case is Complaint Number 95083, involving patient M.C. M.C. presented to Respondent on June 21st, 1993. She was experiencing toothache and swelling in her upper right quadrant, specifically tooth #4. She was not in excruciating pain, but she was uncomfortable enough to go to Respondent having no appointment. (1:74, 76; 20:121, 123). Respondent extracted tooth #4 during that first visit. (1:75, 76, 20:122). Tooth #4 was a good candidate for salvage by endodontic treatment. (5:55, 56;8:22). Respondent testified that he advised M.C. of her option to have root canal therapy, but that she chose to have him extract the tooth. (20:122). However, based on all the other evidence of record relative to Respondent's adamant and passionate belief that root canals are harmful to human health by way of a number of serious maladies, its found that his informing her of her option to have root canal was in keeping with his belief and his counsel to patients on this subject, was, in two words heavily biased. Even M.C. herself testified to the Board in the Investigative Interview of this matter that Respondent told her at the time that he did no do root canals.(SE8). So it should not be a surprise to know that M.C., after listening to Respondent, chose to have #4 extracted. However, it is found that her election was misguided, and not based on informed consent, but on propaganda.
80. Also, rather than take the time during her first visit to perform a full examination or charting of M.C.'s mouth, Respondent had her view a videotape on the danger of silver amalgams, and tested her with his computron. (SE 8; 20:124). Respondent did not perform a comprehensive exam on M.C. until the advanced stages of her treatment on October 5th, 1995. M.C. had some areas of periodontal concern. Respondent's testimony that he had no time for a comprehensive exam until then is not credible in light of the fact that he found time to show her the antiamalgam movie, and test her with the computron. Performing extensive oral surgery on M.C. in these circumstances, without first completing a comprehensive examination of her mouth, including a periodontal examination, was below the standard of care. (9:46, 47).
81. Respondent drew a red mark on the chart at tooth #4, then after extracting it he made the red mark a blue one, and wrote the dollar amount of his charge for that extraction. (20:122124). *She came to Dr. Lee in pain and elected for extraction over endodontics. (*The Board amended this finding from that proposed by the Administrative Law Judge by deleting the final sentence and adding a new sentence to more accurately reflect the record).
82. Respondent also extracted M.C.'s teeth ##14 and 20 during her later visits to his office. (1:55; 20:135, 140). Respondent's records contain no documentation of why those teeth were extracted. Respondent testified that he did again advise her as to the possibility of root canal surgery. (20:129, 130, 138, 152). Root canal surgery again was a distinct possibility for M.C.'s teeth ##14 and 20, and could have saved them had her options been timely presented to her in at least a neutral manner. (5/6:53, 55; 9:45, 46, 8:23, 27, 28). But again, the reasonable inference from all the evidence is that M.C. was not neutrally presented her options. Losing her #20 tooth for M.C. meant losing the abutment for her existing bridge. (8:28; 9:46). So not only did Respondent harm M.C. by taking from her a tooth she could have kept, but also by complicating her use of a dental appliance; both of which have degraded the condition of M.C.'s oral health; degradation that shall remain for the balance of her life.
83. Respondent also performed cavitational surgery on tooth #14, and an osteotomy on tooth #20, but nowhere made a record of those surgeries in M.C.'s records. (20:148).
84. Respondent's records for M.C.'s teeth ##4, 14 and 20 are below standard of care. (5/6:54, 55; 8:23; 9:42, 102; 20:120122, 148, 152).
85. Respondent placed two temporary bridges in M.C.'s mouth; one spanning from #3 to #5, and the other from #12 to #15. (1:79, 80). Subsequent to having these temporary bridges placed in her mouth by Respondent, M.C.'s financial wellbeing took a turn for the worse, resulting in her inability to continue paying Respondent for his treatment as regularly and fully as she had been doing up to that time. She mailed a letter written by her to Respondent informing of this and inquiring of him if there would be the possibility of her paying him in a financially less demanding way. (20:141, 142). As Respondent explained, "[T]he last treatment [of M.C.] was 2894 and we went ahead and called her on 42595, a year and two months, and that's when we [Respondent and his office staff] decided after she hadn't paid her bill after a year and two months that we needed to do a followup." (20:143). The "followup" to which Respondent referred, for all the record knows, was in contemplation not of replacing M.C.'s temporary bridges with permanent ones, but his collection of the money she owed him for his treatment unto that time. Thus it appears and is found from the record that Respondent abandoned his treatment of M.C. at a most crucial point in time. Respondent apparently excuses himself from this professional dereliction of duty in his testimony that when he and M.C. last parted she went possessed of the knowledge that the bridges she then had in her mouth were not permanent. (20:143, 144). Evidently it is the opinion of Respondent that a dentist cannot abandon a patient so long as the patient's knowledge of her treatment status is current.
86. The seventh case is Complaint Number 96054, involving patient L.B. This complaint was filed by the Board sua sponte after receiving information from L.B. of her treatment by Respondent. L.B. is afflicted with multiple sclerosis, the symptoms of which began to manifest themselves when she was a young woman of eighteen years. Her multiple sclerosis was diagnosed in 1985.(2:6, 7, 4:69; 7:58, 69). Multiple sclerosis, a disease for which there is no known cure, is a slowlyprogressive disease of the central nervous system, characterized by disseminated patches of demyelinization in the brain and spinal cord. (SE 16). L.B.'s first communication was to the Board's investigator wherein she expressed to him her concerns over the difficulty she was having with Respondent in making financial arrangements for him to complete her treatment. (7:5). She also made other calls to the Board relative to her dentistpatient relationship with Respondent. (7:59).
87. Prior to contacting Respondent for the first time L.B. had been independently exposed to the idea that silver amalgams could be preventing multiple sclerosis patients from at least an amelioration of their symptoms, if not a cure. (4:83). Among those was Dr. Dietrich Klinghardt, an "holistic" physician who testified in Respondent's behalf in these cases. (4:7074;12:472). She had also gone to see Dr. Bruce Shelton, for the same reason. Dr. Shelton also testified in behalf of Respondent. (16:35071). She did not go to Respondent the first time already prepared to have her silver amalgams removed, but only to see if Respondent could provide her relief some in the medical community until then had not provided her. (4:71).
88. During her first visit to Respondent he provided her with information which gave her to understand that there may or could be a causal connection between her multiple sclerosis and her amalgam fillings. He told her that the mercury in her silver amalgams could travel in her bloodstream to her brain and poison her. (4:7670, 82; 7:32, 34, 35, 66). Even Respondent testified that he told L.B. that the removal of her silver amalgams "may help her with her condition," and told her "it could very well help her condition." He testified "I have seen it work so many times that I can't deny it, but I do not guaranty [sic] anything." (21:105, 106; 28:11). She had no dental problems when she first went to Respondent. (2:7, 8; 21:107). Her thenexisting amalgams were serviceable. (21:107).
89. Respondent's suspicions were justified to his way of thinking after he hooked up L.B. to his amalgameter (previously found herein to have no dental diagnostic value; See: Finding of Fact #5) and read its indications. "I showed," he testified, "with an amalgameter test that she had electrical currents that interfered with the [acupuncture] meridians." And which of the teeth did the amalgameter say were problems?, Respondent was asked by counsel. "The ones that had the minus electrical charge, and those that had plus." he answered. (21:106, 107). Respondent told L.B. she needed to have all her silver amalgams removed and replaced. (4:80). Evidently, based on this testimony and the record in these cases as a whole, the amalgameter and Respondent find problems with teeth having silver amalgam restorations with great ease and regularity. Conversely, the record is entirely unacquainted with a single instance of those two not discovering a problem with such a tooth. Respondent's treatment records contain no indication of any clinically acceptable reason for Respondent to have removed those amalgams.
90. It cannot be too emphatically found as a fact that there is not one scintilla of credible record evidence that multiple sclerosis can be treated, cured or alleviated in any way to any degree by removing silver amalgams. Contrarily, the State produced much credible evidence for the record that Respondent's treatment has in no way been shown to have a chance to do what he claims it might do. Charles C. Thompson, D.M.D., M.S.D., and member of the faculty of the Oregon Health Sciences University, School of Dentistry, Department of Pathology, published in the AprilJune, 1986 edition of the "Journal of Oral Medicine," an article on this topic in which he concluded that "There is no bona fide scientific evidence that...mercurysilver amalgam restoration replacement...has any bearing on the course of multiple sclerosis." (SE 16). Moreover, the Medical Advisory Board of the National Multiple Sclerosis Society likewise has concluded that "there is absolutely no evidence that mercury amalgam fillings have any connection with MS or that their replacement would help patients with the disease." (SE16). Cruelly, some of the purveyors of the theory of amelioration of multiple sclerosis by silver amalgam removal point to instances where they say the treatment has worked. It should be borne in mind that multiple sclerosis has the unexplained characteristic of marked periods of spontaneous remission, and such is true in multiple sclerosis patients across time and geography, with or without silver amalgams. (SE 16, 30).
91. Based on the evidence of record the State has alleged in L.B.'s case, much like its allegation in S.T.'s case (hyperthyroidism), that Respondent has * exceeded the scope of the practice of dentistry by treating multiple sclerosis. The same type of finding is found here in L.B.'s case as was found in S.T.'s (hyperthyroidism) and Ms. Rauen"s (arthritis). Respondent was not practicing outside the scope of dentistry by treating multiple sclerosis quite simply because he was not treating multiple sclerosis. What he did is no treatment for multiple sclerosis, but a false claim as to what benefits his treatment can affect. (*The Board amended this finding to correct grammar.)
92. L.B. was in a very vulnerable state when she went to Respondent with her hopes for her life's improvement, and was highly susceptible to Respondent's claims of his treatment' possibilities. (7;64, 84, 85). Nothing Respondent did helped with L.B.'s multiple sclerosis. (21:114;; 123). In fact, since treating with Respondent her physical debilitation has progressed. (7:55).
93. L.B. testified at this hearing and, as found by the undersigned's observation of her demeanor as a witness, gave the following testimony both eloquently and emotionally: "I am here to help [Respondent] relate to his patients better, especially his patients who have diseases that there's no medical cure for, to not "not to play on the emotions of the people, because that's cruel...And to create any kind of false hope like that is cruel." (21:144). Indeed.
94. L.B. had a perfectly healthy endodontically treated tooth #2 when she went to Respondent. (5:75: 4:85). Respondent s radiographs of that tooth indicated nothing wrong with it (except, in Respondent's opinion, it had been endodontically treated). (21:111). Respondent gave L.B. his counsel on root canal treated teeth. According to L.B. he told her "when you do root canals you interfere with the blood flow in your gums and your teeth and that you could influence, you know, your blood supply going from that area to your brain. It offsets the flow of energy from on part to another." (4:86). This testimony of L.B. is credible taken with Respondent's testimony that tooth #2 was not asymptomatic based on the results of his testing the tooth with his computron and AK. (28:12). His computron "showed problems." (21:110,11). Respondent's computron serves him about as well as his amalgameter. Again, the computron and AK are not valid diagnostic methods or tools in dentistry as has already been found and discussed. Respondent extracted L.B.'s tooth #2 solely because it had been treated by root canal surgery. (21:111).
95. Respondent's records contain no diagnosis of tooth #2, nor documentation of a reason why he extracted tooth #2. (5/6:75;8:37).
96. Following the extraction of #2, the Respondent initially intended to place a bridge at teeth ##2,3 and 4. He never did, and the State alleges abandonment. Respondent testified that he did not place the bridge because, it was unnecessary and L.B. elected not to have the bridge. (28:12, 13). There is insufficient evidence of record to support the State's claim relating to the bridge not being supplied.
97. Respondent also performed cavitational surgery on L.B. in the areas of teeth ##16,17, and 21. (4:89, 90, 96, 97, 105, 106, 111). She had been having no pain the areas where Respondent went ahead and performed the cavitational surgery. (4:91, 106).
98. Respondent's records contain no evidence supporting the need for the cavitational surgeries. (5?6:71, 72). His only record of any diagnosis and treatment for the cavitational surgeries were his customary precavitational surgery red caret, and postcavitational surgery blue caret. (21:114, 115). The only radiograph he had of #21 had been made four years prior to the surgery on that cavitation. No radiographs were done just before the cavitational surgeries. This omission was below the standard of care. (5/6:72).
99. Respondent filled L.B.'s tooth #26, but his records contain no documentation of his diagnosis supporting that treatment being performed. (9:73, 74). Familiarly by now, Respondent made a red mark on the tooth chart before filling the tooth, and then made the red mark blue after the filling. (21:105, 113, 114).
100. When L.B. began her treatment with Respondent her financial situation was rather rosy, and she was able to pay Respondent $100.00 every month for her treatment, and occasionally $400.00 or $500.00 each visit to his office. (4:92; 7:42, 43; 28:15). Later, her financial situation worsened, and she had to discontinue her treatment with Respondent for approximately two years, the time it took her to pay off her balance with him, and restore her financial situation. (4:93, 94; 7:44, 45; 28:15). When she suspended treatment with the Respondent her teeth had temporary crowns on them placed by Respondent, and they had intended to place permanent crowns. (4:95). When L.B. returned to Respondent to resume the treatment she was informed by his office that she must either pay for the treatment in full or open a dental credit card account. (4:98, 99; 7:47). L.B. was understandably reluctant to begin anew the method of running up charges after she had just paid off previous balances, so she declined to open a credit card account and went to another dentist. That dentist told her she needed to return to Respondent and have him place the permanent crowns in her mouth. (4:100; 7:48). At that point in time L.B. contacted the Board of Dental Examiners for guidance, and was informed by Board Chief Investigator Dr. Larry Pozil that she should return to Respondent and insist on his completing her treatment, including placement of the permanent crowns. She did return to Respondent, and after imparting to him the information she had gathered from the other dentist and Dr. Pozil, Respondent consented to completion of her treatment in exchange for payment made by a financial arrangement more amenable to her, i.e., to pay as she could. (4:414, 101, 103, 104; 7:49, 50, 70, 71, 28:17). Respondent had a duty to complete L.B.'s treatment without changing their financial agreement in the crucial midpoint of her treatment to a method that would make her permanent restorations financially unattainable to her. (9:75). Finding otherwise would very nearly sanction dentistry extortion by condoning a dentist's treating a patient on affordable financial terms up to the point of temporary restorations, then, when the patient is most dependent on the dentist for continued health care, allowing the dentist to alter the terms and compel the patient either to pay through the nose, search for another dentist who will affordably finish the treatment, or go without permanent dental restoration.
101. Respondent's records fail to disclose that he ever made any diagnoses in L.B.'s case, as particularly found at Findings ##95, 98, and 99 in this case. Nor do his records show that he ever did a periodontal examination of L.B. Respondent's treatment records are below standard of care. (2:9, 9:70,71).
102. The eighth case is Complaint Number 96175, involving patient G.P. G.P. was at one time a dental assistant of Respondent's (24:150). She sought dental treatment from him because she "was very unhealthy, sick all the time. My face was always scarred from we don't know what and headaches every day, all the time." (2:15; 24:151, 152). Respondent first removed all G.P.'s silver amalgams, and he removed all her endodontically treated teeth. (24:153, 154). His treatment plan included eventually placing permanent restorations in G.P.'s mouth. (24:177, 178). Respondent never made any study models prior to embarking upon this extensive treatment plan. (2:16). Having such study models prior to G.P.'s treatment would have been advisable (9;80).
103. Respondent extracted some of G.P.'s teeth simply because they had had root canal treatment, and some of her silver amalgams simply because they were silver amalgams. (21:130, 131; 24:153, 154). (Although some of the silver amalgams were breaking down. (21:128)). Unsurprisingly, his tests computron, AK, myomonitor and amalgameter according to him, supported all his treatment. (28:20, 21). Nothing in Respondent's radiographs or treatment records supports the extractions. (9;78,79; 5/6:76, 78; 8:38, 39).
104. G.P. had continued to treat with Respondent until he terminated her employment with his office. At the time of her discharge from his employment her teeth had been fixed with temporary restorations. (24:155, 177). Subsequently, she found a position with another dentist, a Dr. Chris Lienau, whose office is situated directly across the street from Respondent's. (24:156, 157). During that time her temporaries, being temporaries, began falling out and falling apart, and she wished to have the treatment completed. (24:181, 182). Respondent never attempted to contact G.P. regarding completion of her treatment by himself or another dentist, his claim of effort to do so notwithstanding. Respondent had her telephone number all the time. (24:183, 184). It is found by inference that under the circumstances of her departure Respondent deemed it more comfortable and more convenient to forget the case.
105. Dr. Lienau, after discovering the circumstances of G.P.'s teeth and how she had left Respondent's employment in midtreatment, pressured her into signing a complaint against Respondent to be filed with the Board of Dental Examiners. She did sign the complaint and it was filed. (24:150, 157, 158). Dr. Lienau composed the complaint, and G.P. repudiated much of the statements in her complaint at hearing. (24:158, 161163). However, it is true that she signed and filed the complaint, or had it filed, and that she had wished to have her treatment completed by respondent. (24:170, 172, 173, 181, 184).
106. After the complaint was filed, a Board consultative dentist, Dr. Palmer, examined G.P. in August, 1996. He found her temporaries loose and coming off into his hands. (7:8789, 94).
107. Eventually, after her complaint to the Board was filed, Respondent finally completed his treatment of G.P. in 1998. (2:17; 24:182, 183).
108. Respondent's treatment records of G.P. are below standard of care. (9:77). his recordation of diagnosis and treatment plan was done in the same barely existent manner as with the other patients. (21:130). The records are devoid of any periodontal charting, any TMJ analysis, or that Respondent even examined G.P. before beginning to treat her. (G.P. treatment records; 9:77, 78). Respondent even failed to record the results of his highly valued amalgameter. Respondent attempted to explain that way with the lame excuse that G.P. "was a dental assistant. G. had worked several months with me at the chair. She knew what was involved and " and knew what we were doing." (28:20). This as if the sole purpose of patient records is to edify the patient. If such were the case, one could suppose that a dentist performing surgery on a fellow dentist would be excused from keeping any records at all.
109. The ninth and last case is Complaint Number 97341, involving patient N.F. N.F. first presented to Respondent complaining of pain in her tooth #3, which is a tooth of the upper right quadrant of the mouth. (3:8, 24). She had no pain at that time in her lower right quadrant. (3:24, 25). Respondent explained to N.F. that her mouth was very toxic and that her problem could be from the silver amalgams in her teeth. Respondent showed her a videotape calling in question the safety of silver amalgams. (3:8,9). Respondent also advised N.F. that root canals are very bad, and suggested to her that she read Dr. Meining's antiroot canal book, which she did. She became convinced from Respondent and his suggested literature that root canals are very bad. (3:11, 12, 75, 76).
110. Respondent performed his AK on N.F., and Dr. Bouquot said she had NICO. (3:100; 12:147). Convinced by Respondent that her health demanded the surgery, N.F. consented to Respondent performing four cavitational surgeries on her, in areas ##29,30,31, and 32. Respondent practically dropped a consent form in N.F.'s lap as she was seated in the operatory chair just prior to commencement of the surgery. (2:21; 3:24, 25, 27, 101; 21:142). Respondent relies heavily in these cases, including N.F.'s, that the patient signing a consent somehow exonerates him from responsibility for doing harm to the patients. (3:102, 103). However, as already has been found, it is below standard of care for a dentist to regard a patient as being competent to consent to be harmed by a dentist's improper surgery or treatment. N.F.'s consent typifies those of the other patients: She consented because she was trusting Respondent's professionalism. (3:100). The cavitational surgeries were performed October 2nd, 1995. (21:147). The cavitational surgery sites in N.F. were in her lower right quadrant where she was experiencing no pain. (2:24, 25; 3:2426). Respondent's cavitational surgery provided no pain relief to N.F. in the area where she was hurting, #3. (3:25).
111. Unfortunately for N.F., Respondent's surgery resulted in a great deal of harm to N.F. in that it caused her to have paresthesia, or a constant numbness in her mouth. When N.F. awoke the next morning after the surgery she discovered that her lower lip was hanging limp. Although paresthesia is a risk incidental to oral surgery, it is rare, and even Respondent advised N.F. presurgery that the chances were 99.9% against a result of paresthesia. (3:30, 31, 103, 21:146). Respondent conceded that the paresthesia was the result of his surgery. (2:22; 3:27; 21:141).
112. N.F. returned to Respondent's office a week later, October 9th, 1995, to have him remove her sutures. She informed him of her numbness at that time, but Respondent said and did nothing to help the situation. (3;109; 5/6:89, 90). N.F. returned to Respondent's office for a second followup visit on November 6th, 1995, still suffering with the paresthesia. (N.F. testified rather confusedly that her paresthesia had begun slow improvement by the time of her return to Respondent's office November, 1995, but elsewhere that her paresthesia did not begin to improve for months postoperative. (3:108, 112).) Still, Respondent did and said nothing to help that condition, and was even "nonresponsive" to N.F., not even "saying he was sorry." (3:111.112). . Respondent understood in his own mind that most paresthesias resolve within three to six months, so he was going to wait and see what transpired with N.F. (3:28; 21:147, 148). Respondent did not see N.F. from November 6th, 1995, until June of 1996. She was still having paresthesia at that time. Respondent made no referral of her to a specialist. *According to Dr. Ingersoll the window of time was rapidly closing in which the damaged nerve could be repaired. Standard of care would, by that time, have required a referral (5/6:90. (*The Board amended this finding to add information that clarified the finding based on the record.)
113. After June of 1996, Respondent made no attempt to contact N.F. to inquire of the state of her paresthesia. It is evident based on his testimony that he felt no obligation to do so, but that N.F., rather, was somehow obliged, or had a duty as a patient, to contact him if she wanted him to help her with the paresthesia he had inflicted on her mouth. (21:148, 149). Respondent never took any steps to help N.F. with her paresthesia, including refer her to an oral surgeon. (3:29, 30).
114. N.F.'s paresthesia never did resolve, and still she was suffering from it the day she testified at this hearing. (3:44). She has been to other dentists since leaving Respondent, but after one look into her mouth and they declined to accept her as a patient since her dental condition was so "terrible." (3:40, 41). According to N.F.'s own testimony, since the cavitational surgeries, "I am not the same person since. . . .People naturally have a fear of dentists. And this whole thing has been devastating for me. Absolutely devastating. And it's been an ongoing thing now since 1994. And I'm back to point zero, only much worse than before. . . I have a lip that's numb . . . And all of the pain and suffering I have to go through. . . . And all the money that is spent and time that has been spent. And here I am." (3:159, 160).
115. Naturally, since Respondent had not at all treated N.F.'s tooth #3, the tooth that was giving her pain all along, it was still hurting her, and becoming worse. Rather than refer N.F. to an endodontist, who the record can reasonably infer from other similar cases, might have been able to save the tooth, Respondent straightaway referred N.F. to a dentist in Nevada to have #3 extracted. (2:21, 22; 3:32, 33). That dentist extracted her #3, and performed more cavitational surgery on her. (3:34, 35). Thereafter, N.F. returned to Dr. Lee who wanted to perform additional cavitational surgery on her. (3:38).
116. Respondent's treatment records of N.F. contain no basis of justification for the four cavitational surgeries he performed on her. (2:23; 5/6:8082). She was having no problem with those areas, and State's expert witness, testifying while examining Respondent's panorexes of those sites and seeing no pathology indicated thereon, corroborated that there was no justification for them. (32:71, 72).
117. A great deal of testimony and documentary evidence in these cases was heard and admitted relative to the subject of acupuncture. Some findings regarding that subject need to be made. Respondent offered pages and pages of testimony from witnesses in an effort to prove reliability of AK and the computron and the amalgameter in dentistry, each of which incorporate acupuncture and what are referred to as the acupuncture meridians in their techniques. (See: testimonies of Dr. Klinghardt, 11:16155, and 12:472, and Dr. Royal, 19:1594; SE 28, 30, 39, 40; RE A3, A4, 146, 163). Acupuncture needle therapy by now has been rather well accepted as a method of treating pain. Although Respondent occasionally does use acupuncture needles in his practice as a way to alleviate pain (20:17), that is not a subject of the State's complaint in these cases. The lion's share of evidence regarding acupuncture was relative to Respondent's use of what he claimed to be diagnostic techniques which incorporate, somehow, what are known as the body's acupuncture meridians, to find that a patient's endodontically treated teeth and silver amalgams are harmful. (Record as a whole). This is entirely different from a claim that acupuncture needles can help alleviate pain. The evidence offered by Respondent to prove the reliability of his diagnostic techniques not only was unconvincing, but added to the believability of the State's evidence. Perhaps the two most incredible pieces of evidence on his head were RE 146, the socalled Voll Chart, and the testimony of Dr. royal (the mercuryinthelake man, Finding of Fact #43). This is a chart of the human teeth and shows, according to Dr. Royal, "how those teeth can affect those different organs and systems through which the acupuncture meridians travel." (19:20, 52). Each particular tooth is claimed to have an affect on particular anatomical areas. For example, Dr. Klinghardt testified that endodontically treating the front teeth can have an adverse affect on one's kidneys. By extracting front teeth that have root canals a kidney patient can regain normal kidney function. (12:4143). According to Dr. Royal, human tooth #17 corresponds to the peripheral nerves, the left side of the heart, the jejunum, and the ileum. He offered to illustrate his position on the acupuncture meridians by using the Voll Chart and giving testimony of an anecdote of a man who suffered from severe coronary artery disease. He testified, seriously, that "the reason" the man had coronary artery disease "was because the energy that flows out of the heart flows down the heart freeway of energy to the small finger, turns around and then flows back up the body along what is known as the small intestine freeway. The small intestine freeway passes right over these back two wisdom teeth, does a little jig out here, disappears right in the area of the temporomandibular joint." (19:53). He continued: "What happened there was a block here and just as would happen if a beaver dam were build [sic] on a small stream, a cesspool formed behind that beaver dam of energy. It was backing up into the heart. It was as if this room would have a temperature of 80 degrees and the thermostat were stuck and nobody could get out and you couldn't change the thermostat. It caused an acceleration of the aging process, a deterioration by virtue of the fact that you could not get rid of the energy that was building, building, building. When the tooth was pulled,immediately it was like blowing up a beaver dam. All of the sudden, there was a surge out of his heart, through that area, with normal circulation through the energy system again and he noticed it immediately." (19:53, 54). Conspicuously absent from the Respondent's evidence is an instantiation, from anywhere on earth, of a physician referring a kidney patient to a dentist to have front teeth extracted, or a heart surgeon referring a heart patient to a dentist to have tooth #17 extracted. Respondent's counsel showed Dr. Royal RE A3 which has on it a depiction of a human face with curvy lines. Asked what that showed, Dr. Royal said, "These are trying to show how energy whirls occur and you wind up with vortexes of energy in certain specific areas of the body." Dr. Royal never actually explained his "whirls" and "vortexes" or freeways," or their physiology other than by crossexplaining one by description of another. It was this fantastic testimony of Respondent's case, and the evidence of the State's, which, combined with all other evidence of record previously cited, lead to the findings of fact relative to the worthlessness of AK, the amalgameter and the computron as dental diagnostic devices or methods. This evidence of the acupuncture "meridians" also formed the proud centerpiece of Respondent's positions why endodontically treated teeth and silver amalgams are to be avoided. Considering the record as a whole relative to the socalled acupuncture meridians, State's expert Dr. Stephen Barrett most aptly termed the concept "complete baloney)." (31:30).
118. Some, but not much, evidence was presented by both parties relative to Respondent's use of "homeopathic" remedies in his practice, such as Traumeel, and injections of protamine zinc insulin (PZI) and intravenous administering of vitamin C. These substances are not used by most dentists. The State alleges that the use of these substances are without any clinically acceptable justification, but there is insufficient evidence of record to support that allegation. (2:17, 18; 20:130133; 21:151159; 4853). However, whether these substances have any legitimate use or not, Respondent failed to adequately document in his records his administering of them, and that omission is substandard of care in the area of record keeping. (5/6:6870). (A) This hearing was held and these Findings of fact, Conclusions of Law and Recommended Order submitted, under authority of and pursuant to A.R.S. 411092 and A.R.S. 321263. (B) Subject matter jurisdiction is vested at A.R.S. 321201et sequitur. © The standard of proof in these nine consolidated cases is proof by preponderance of the evidence (any amount greater than 50%). See: Cullpepper v. State, 187 Ariz. 431, 930P.2d 508 (App. 1996). (D) The term standard of care, as used throughout these Findings of Fact, is the exercise [of] that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances. A.R.S. 12563. This is the statutory definition of standard of care used in actions relating to health care and, based on the testimonies of experts from both parties in these cases, was the working definition used throughout the hearing. It is also concluded that the standard of dental care for all general practitioners in Arizona, such as Respondent, is the same. (E) From the conclusion immediately preceding erases the next. What should always be kept at the forefront in this Decision and Order are the facts of nine consolidated individual cases, each of which has to do with an individual patient and Respondent's treatment of her or him. These patients and their treatment from Respondent are what matter, and they should not be misused as cannon fodder in an internecine war being waged within the dental profession. That is to say that at no time should this decision, or any part of it, be misperceived as a pronouncement concerning the respective validity or invalidity, merit or demerit, of the socalled traditional or allopathic dentists on one side, and the socalled integrative, homeopathic, or holistic dentists on the other. Unlike physicians which Arizona legally subdivides into Homeopathic Physicians, A.R.S. 322901, et. seq., Naturopathic Physicians, A.R.S. 321501, et seq., and Allopathic Physicians, A.R.S. 321401 , et seq., and regulates each within its own, Arizona draws no such legal distinction where it licenses and regulates dentists. Seen through the eyes of Arizona, a dentist is a dentist is a dentist. Hence, none of these cases nor any part of this Decision and Order should be misconstrued as a generalized validation or repudiation of Respondents practice in those terms. These cases and this decision consider certain particulars of Respondents practice, i.e., his inadequate treatment, diagnosis, and recordkeeping as a dentist licensed by the State of Arizona. If any among the particulars of his practice which are addressed herein happens to be a procedure utilized in the main by dentists who regard themselves holistic, but rarely or never by dentists who regard themselves allopathic, so much is coincidence which may be taken by some as applying to their own selfcatergorization, but is not a concern of this decision or the current state of Arizona law, neither of which take cognizance of those informal, intraprofessional labels. (F) Respondent urges dismissal of Complaints #95178 (Ms. Rauen) and #97175 (G.P.). It was found in fact that in G.P,'s case the route and method by which the Complainant was brought was unusual. Also, Ms. Rauens testimony might lead one to believe that her enthusiasm for the Complaint process was less than wholehearted. Nevertheless, the Board is statutorily empowered to pursue G.P.'s case based on the facts discovered in its investigation thereof, notwithstanding G.P.s repudiation of most of the substantive content of the Complaint letter composed by Dr. Lineau, and signed by her. A.R.S. 321207.A.9., 321263.1. This is true in cases of where the investigation brings to light unprofessional conduct which is not necessarily expressed or implied within the content of the complaining individuals letter, and in cases where they do. It would frustrate the purpose of the Board of Dental Examiners if they were powerless to proceed against an unprofessional conduct which the complaining member of the public failed to include or which was other than what she did include in her letter to the Board, but which came to light nevertheless. As to Ms. Rauens case, although she did not herself bring the Complaint against Respondents, such is of no consequence. The Board on its own motion may investigate any evidence which appears to show the existence of any of the causes or grounds for disciplinary action as provided in 321263. A.R.S.321263.02. In Ms. rauens case, as was found, such a motion was duly made and carried. (G) Respondent argues that it is improper for the administrative complaint process to resolve the present differences between these parties; that these differences should be ventilated openly in the legislature or in the Board through its rulemaking authority, and the court of public opinion. Respondent observes that the Board, despite the legislative mandate at A.R.S. 321207, has no rules addressing these disputed dental practices. In the absence of such rules, so the Respondents argument goes, this Administrative Law Judge should recommend dismissal, and urge the Board to make rules, or the legislature to pass statutes, in order that future cases such as these can be properly disposed, or completely obviated. Conceding the potential for guidance that could be had from rules bearing on these topics, this ALJ remains of an opinion different than Respondents. Three statutes, A.R.S. 321207.A.13, 1263., and 1201.18, make proper the going forward of these nine administrative complaints, and any such in future, with or without such additional rules or statutes advocated by Respondent. As a matter of law, it would be an improper abdication of his responsibility as an ALJ for this ALJ to recommend dismissal of these cases on the ground urged by Respondent. They were properly brought, jurisdiction vests, and his duty attaches. A.R.S. 411092.01.B. (H) Respondent points out in his posthearing reply memorandum that the methods and devices he employs which were here found unreliable are allowed by Arizona law to be used by naturopathic physicians (A.R.S. 321501.20), homeopathic physicians (A.R.S.322901.1.©, and chiropractors (A.A.C. R476). The practice of dentistry is welldefined and circumscribed by statute. A.R.S. 321202. The practice of dentistry is not homeopathy, naturopathy or chiropractic. What reasons the governing boards of those latter three professions may have found to authorize the use of what they authorize and for what purposes they authorize them is their, their licensees and their patients concern, but not the concern of the Arizona Board of Dentistry. The facts herein found, and the evidence of record which form their bases, all are to do with the use of Respondents devices and methods in the practice of dentistry. Whatever value they may or may not have in other fields, the evidence failed to show they have value in dentistry. (I) Count One of the States charges against Respondent pertain to Complaint 95084, involving patient D.T. Respondents conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n) as alleged in Count One. That statute deems conduct unprofessional which does or would constitute a danger to the health, welfare or safety of the patient or public. Respondent made no diagnosis justifying the referenced treatment of on D.T., and the treatment was based on inadequate radiographs and insufficient clinical data. Respondents treatment of D.T. endangered and damaged his health, safety and welfare. (J) A.A.C. R4111102.A. makes Respondent the dentist of record to all these nine patients. The first sentence of subsection E. of that rule provides: The dentist of record shall remain responsible for the care of the patient during the course of treatment and shall be available to the patient through the office, an emergency number, an answering service, or a substituting dentist. This rule creates in the dentist of record a duty to follow through to completion a patients treatment, irrespective of the patients obnoxious or irritating manners. Accord: Jackson v. Oklahoma Memorial Hospital, 909 P.2d 765 (Okla. 1995); Ricks v. Budge, 64 P. 2d 208 (Utah 1937). When Respondent terminated D.T. as a patient in the midst of his treatment as found, he breached that duty. (K) Count Two of the States charges against Respondent pertain to Complaint 95083, involving patient S.T. Respondents conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n) because there was no clinically acceptable justification for the Respondents treatment of S.T., and the treatment was based on insufficient clinical data. Respondents treatment of S.T. endangered and damaged her health, safety and welfare. (L) The State alleges in Count Two that Respondent exceeded the scope of the practice of dentistry by treating S.T.s hyperthyroidism. A.R.S. 321202 does define practicing dentistry. However, based on the facts found hereinabove, it could be concluded only that Respondent was making the ALJ in pleading or posthearing argument how making that claim exceeds the scope or which provision of A.R.S. Title 32, chapter 11, or rules thereunder, proscribes exceeding the scope. It is not among the unprofessional conduct listed at A.R.S. 321201.18.(a)(aa). It is not grounds for disciplinary action at A.R.S. 321263. The value of the statutory definition of practicing dentistry seems to in here in noticing what practices require licensure. See A.R.S. 321261.
CONCLUSIONS OF LAW
(A) This hearing was held and these Findings of Fact, Conclusions of Law, and Recommended Order submitted, under authority of and pursuant to A.R.S. 411092 and A.R.S.321263.
(B) Subject matter jurisdiction is vested at A.R.S. 321201 et sequitur.
(C). The standard of proof in these nine consolidated cases is proof by preponderance of the evidence (any amount greater than 50%). See: Cullpepper v. State, 187 Ariz. 431, 930P.2d 508 (App. 1996).
(D) The term standard of care, as used throughout these Findings of Fact, is the exercise [of] that degree of care, skill and learning expected of a reasonable, prudent health care provider in the profession or class to which he belongs within the state acting in the same or similar circumstances. A.R.S. 12563. This is the statutory definition of standard of care used in actions relating to health care and, based on the testimonies of experts from both parties in these cases, was the working definition used throughout the hearing. It is also concluded that the standard of dental care for all general practitioners in Arizona, such as Respondent, is the same.
(E) From the conclusion immediately preceding arises the next. What should always be kept at the forefront in this Decision and Order are the facts of nine consolidated individual cases, each of which has to do with an individual patient and Respondents treatment of her or him. These patients and their treatment from Respondent are what matter, and they should not be misused as cannon fodder in an internecine war being waged within the dental profession. That is to say that at no time should this decision, or any part of it, be misperceived as a pronouncement concerning the respective validity or invalidity, merit or demerit, of the so-called traditional or allopathic dentists on one side, and the so-called integrative, homeopathic, or holistic dentists on the other. Unlike physicians which Arizona legally subdivides into Homeopathic Physicians, A.R.S. 322901, et seq., Naturopathic Physicians, A.R.S. 321501, et seq., and Allopathic Physicians, A.R.S. 321401, et seq., and regulates each within its own, Arizona draws no such legal distinction where it licenses and regulates dentists. Seen through the eyes of Arizona, a dentist is a dentist is a dentist. Hence, none of these cases nor any part of this Decision and Order should be misconstrued as a generalized validation or repudiation of Respondents practice in those terms. These cases and this decision consider certain particulars of Respondents practice,i.e., his inadequate treatment, diagnosis, and recordkeeping as a dentist licensed by the State of Arizona. If any among the particulars of his practice which are addressed herein happens to be a procedure utilized in the main by dentists who regard themselves holistic, but rarely or never by dentists who regard themselves allopathic, so much is coincidence which may be taken by some as applying to their own selfcategorization, but is not a concern of this decision or the current state of Arizona law, neither of which take cognizance of those informal, intraprofessional labels.
(F) Respondent urges dismissal of Complaints #95178 (Ms.Rauen) and #96175 (G.P.). It was found in fact that in G.P.'s case the route and method by which the Complaint was brought was unusual. Also, Ms. Rauens testimony might lead one to believe that her enthusiasm for the Complaint process was less than wholehearted. Nevertheless, the Board is statutorily empowered to pursue G.P.'s case based on the facts discovered in its investigation thereof, notwithstanding G.P.'s repudiation of most of the substantive content of the Complaint letter composed by Dr. Lineau, and signed by her. A.R.S. 321207.A.9., 321263.1. This is true in cases of where the investigation brings to light unprofessional conduct which is not necessarily expressed or implied within the content of the complaining individual's letter, and in cases where they do. It would frustrate the purpose of the Board of Dental Examiners if they were powerless to proceed against an unprofessional conduct which the complaining member of the public failed to include or which was other than what she did include in her letter to the Board, but which came to light nevertheless. As to Ms. Rauens case, although she did not herself bring the Complaint against Respondent, such is of no consequence. The Board on its own motion may investigate any evidence which appears to show the existence of any of the causes or grounds for disciplinary action as provided in 321263. A.R.S.321263.02. In Ms. Rauens case, as was found, such a motion was duly made and carried.
(G) Respondent argues that it is improper for the administrative complaint process to resolve the present differences between these parties; that these differences should be ventilated openly in the legislature or in the Board through its rulemaking authority, and the court of public opinion. Respondent observes that the Board, despite the legislative mandate at A.R.S. 321207, has no rules addressing these disputed dental practices. In the absence of such rules, so the Respondent's argument goes, this Administrative Law Judge should recommend dismissal, and urge the Board to make rules, or the legislature to pass statutes, in order that future cases such as these can be properly disposed, or completely obviated. Conceding the potential for guidance that could be had from rules bearing on these topics, this ALJ remains of an opinion different than Respondent's. Three statutes, A.R.S. 321207.A.13, 1263., and 1201.18, make proper the going forward of these nine administrative complaints, and any such in future, with or without such additional rules or statutes advocated by Respondent. As a matter of law, it would be an improper abdication of his responsibility as an ALJ for this ALJ to recommend dismissal of these cases on the ground urged by Respondent. They were properly brought, jurisdiction vests, and his duty attaches. A.R.S. 411092.02.B.
(H) Respondent points out in his posthearing reply memorandum that the methods and devices he employs which were here found unreliable are allowed by Arizona law to be used by naturopathic physicians (A.R.S. 321501.20), homeopathic physicians (A.R.S. 322901.1.©, and chiropractors (A.A.C. R476). The practice of dentistry is welldefined and circumscribed by statute. A.R.S. 321202. The practice of dentistry is not homeopathy, naturopathy or chiropractic. What reasons the governing boards of those latter three professions may have found to authorize the use of what they authorize and for what purposes they authorize them, is their, their licensees' and their patient's concern, but not the concern of the Arizona Board of Dentistry. The facts herein found, and the evidence of record which form their bases, all are to do with the use of Respondent's devices and methods in the practice of dentistry. Whatever value they may or may not have in other fields, the evidence failed to show they have value in dentistry.
(I) Count One of the States charges against Respondent pertain to Complaint 95084, involving patient D.T. Respondent's conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n) as alleged in Count One. That statute deems conduct unprofessional "which does or would constitute a danger to the health, welfare or safety of the patient or public." Respondent made no diagnosis justifying the referenced treatment of on D.T., and the treatment was based on inadequate radiographs and insufficient clinical data. Respondent's treatment of D.T. endangered and damaged his health, safety and welfare.
(J) A.A.C. R4111102.A. makes Respondent the dentist of record to all these nine patients. The first sentence of subsection E. of that rule provides: "The dentist of record shall remain responsible for the care of the patient during the course of treatment and shall be available to the patient through the office, an emergency number, an answering service, or a substituting dentist." This rule creates in the dentist of record a duty to follow through to completion a patient's treatment, irrespective of the patients obnoxious or irritating manners. Accord: Jackson v. Oklahoma Memorial Hospital,909 P.2d 765 (Okla. 1995); Ricks v. Budge, 64 P.2d 208 (Utah 1937). When Respondent terminated D.T. as a patient in the midst of his treatment as found, he breached that duty.
(K) Count Two of the States charges against Respondent pertain to Complaint 95083, involving patient S.T. Respondent's conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n) because there was no clinically acceptable justification for the Respondent's treatment of S.T., and the treatment was based on insufficient clinical data. Respondent's treatment of S.T. endangered and damaged her health, safety and welfare.
(L) The State alleges in Count Two that Respondent "exceeded the scope of the practice of dentistry" by treating S.T.s hyperthyroidism. A.R.S. 321202 does define "practicing dentistry." However, based on the facts found hereinabove, it could be concluded only that Respondent was making a false claim. The State has failed to make clear or at all advise the ALJ in pleading or posthearing argument how making that claim "exceeds the scope" or which provision of A.R.S. Title 32, chapter 11, or rules thereunder, proscribes "exceeding the scope." It is not among the unprofessional conduct listed at A.R.S. 321201.18.(a)(aa). It is not grounds for disciplinary action at A.R.S. 321263. The value of the statutory definition of practicing dentistry seems to in here in noticing what practices require licensure. See: A.R.S.321261.
(M) Count Three of the States charges against Respondent pertain to Complaint 95178, involving patient Ms. Mildred Rauen. Respondent's conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n), because there was no clinically acceptable justification for his treatment of Ms. Rauen, and the treatment was based on insufficient and unreliable clinical data. Further, the denture Respondent made for Ms. Rauen was inadequate, and its inadequacy was occasioned in part by Respondent's unprofessional treatment of Ms. Rauen. Respondent's treatment of Ms. Rauen endangered and damaged her health, safety and welfare.
(N) The State also alleges Respondent "exceeded the scope of the practice of dentistry, as defined in A.R.S. 321201, by treating M.R.s arthritis." The same conclusion of law reached in S.T.s case is reached here relative to that allegation.
(O) Count Four of the State's charges against Respondent pertain to Complaint 96024, involving patient M.C. Respondent's conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n) because there was no clinically acceptable justification for the Respondent's treatment on M.C., the treatment was based on insufficient and unreliable clinical data, and Respondent ever failed to perform a periodontal evaluation of M.C. during her entire treatment, despite the radiographic indication of periodontal concerns, as charged. Respondent's treatment of M.C. endangered and damaged her health, safety and welfare.
(P) Respondent breached his duty of continued treatment of M.C. to his refusal to accept her straitened financial situation, and a payment plan more acceptable to that situation. A dentist is not relieved of the duty to complete a patient's treatment once started either by the patient's obnoxious personality or penurious finances. A.A.C. R4111102.E.
(Q) Count Five of the States charges against Respondent pertain to Complaint 95312, involving patient D.S. Respondent's conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n) * Respondent failed to perform a periodontal evaluation of D.S.despite radiographic and clinical indications of periodontal concerns. The restorative work Respondent performed in D.S.'s mouth was inadequate and required repeated corrections. Respondent's treatment of D.S. endangered and damaged his health, safety and welfare. (* The Board amended this proposed Conclusion of Law to more accurately reflect the record in this matter.)
(R) Count Six of the States charges against Respondent pertain to Complaint 95135, involving patient L.C. (or P.C. or L.P.C.). Respondent's conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n) because there was no clinically acceptable justification for the Respondent's treatment on L.C., the treatment was based on insufficient and clinically unreliable data, Respondent failed to treat dental problems of which he was aware, and the bridge Respondent placed in L.C.'s mouth was inadequate and resulted in further dental problems for L.C. Respondent's treatment of L.C. endangered and damaged his health, safety and welfare
(S) Count Seven of the States charges against Respondent pertain to Complaint 96054, involving patient L.B. Respondent's conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n) because there was no clinically acceptable justification for the Respondent's treatment of L.B. and the treatment was based on insufficient and unreliable clinical data. Respondent's treatment of L.B. endangered and damaged her health, safety and welfare.
(T) The State makes the same charge here that Respondent "exceeded the scope of practice of dentistry" which it also made in Count Two (95083, S.T.) and Count Three (95178, Ms. Rauen). The same conclusion is reached here as was reached in those cases.
(U) Respondent in this case abandoned his treatment of L.B. before it was substantially complete. Conclusions as to the duty of Respondent and all dentists to complete treatment of a patient once undertaken was concluded and discussed supra in the cases of D.T. and M.C. The same conclusion is here reached.
(V) Count Eight of the State's charges against Respondent pertain to Complaint 96175, involving patient G.P. Respondent's conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n) because there was no clinically acceptable justification for Respondent's treatment of G.P., and the treatment was based on insufficient clinical data.
(W) Respondent also abandoned patient G.P. pursuant to A.A.C.R4111102.E., as the facts proved that he made no reasonable effort to assure she continued her treatment to completion either with him or another dentist. Respondent's treatment of G.P. endangered and damaged her health, safety and welfare.
(X) Count Nine of the State's charges against Respondent pertain to Complaint 97341, involving patient N.F. Respondent's conduct in this case constitutes unprofessional conduct pursuant to A.R.S. 321201.18.(n) because there was no clinically acceptable justification for the Respondent's treatment of N.F., his treatment was based on insufficient radiographs and insufficient clinical data, and Respondent failed to address N.F.'s paresthesia adequately. Respondent's treatment of N.F. endangered and damaged her health, safety and welfare.
(Y) Count Ten of the States charges alleges "Respondent failed to maintain adequate treatment records" for each of these nine patients. Respondent's treatment record maintenance in each of these nine consolidated cases was substandard of care, and thus unprofessional conduct as set forth at A.R.S. 321201.18.(y), which makes unprofessional a dentist's failure or refusal to "maintain adequate patient records." See also: A.R.S. 321264.
(Z) Count Eleven of the State's charges alleges unprofessional conduct by the Respondent pursuant to A.R.S. 321201.18.(t) via A.A.C. R4111102, in that Respondent failed to remain responsible for and complete the scheduled treatment for D.T. (95084), M.C. (96024), L.B.(96054), and G.P. (96175). As already concluded herein, Respondent did breach his duty of continued care imposed by the cited regulation, and thus it is concluded that Respondent's conduct in these four cases was proscribed by A.R.S. 321201.18.(t) which makes unprofessional a dentist's violation of any administrative rule adopted under Title 32, Chapter 11 of the A.R.S.
(AA) Count Twelve of the State's charges alleges unprofessional conduct of the Respondent pursuant to A.R.S. 321201.18.(d) as to all nine of these consolidated cases. That statute makes unprofessional any conduct of a dentist which is "gross malpractice or repeated acts of malpractice." (Hence, another legal reason to have regarded "standard of care" in these cases to be that definition at A.R.S. 12563.) The record as a whole, and the abovefound findings of fact preponderantly support the conclusion here reached that Respondent violated A.R.S. 321201.18.(d) in all these nine cases.
(AB) Count Thirteen of the States charges alleges unprofessional conduct of the Respondent in L.B.s case (96054) pursuant to A.R.S. 321201.18.(h) because Respondent represented to L.B. that removal of her silver amalgams could improve her multiple sclerosis. That statute makes it unprofessional conduct for a dentist to "[r]epresent[ ] that a manifestly not correctable condition, disease, injury, ailment, or infirmity can be permanently corrected." The instant record contains a preponderance of evidence to conclude that Respondent did engage in this unprofessional conduct, even though he did not make any "guarantee" to L.B. He did infuse her with significant false hope that his treatment could improve her multiple sclerosis, and that it could do so on a permanent basis. The word "guarantee" is not necessary. The statute uses the phrase "Representing that [multiplesclerosis] can be permanently corrected." . . . (Emphasis added.) Webster includes three coordinate subsenses of the word "can" which apply to the statute. "Can" means: "know how to, have the skill to; be physically or mentally able to; may perhaps, may possibly." Webster's Third New International Dictionary, unabridged, 1993. Therefore, in making his false claims to L.B. relative to what his dental treatment can achieve, Respondent violated A.R.S.321201.18.(h).
(AC) Count Fourteen of the State's charges against Respondent allege that his use of "PZI, supplements, and/or intravenous medication without any clinically acceptable justification, thereby posing a threat to the health, safety and welfare of his patients." The within facts are insufficient to support the conclusion here urged by the State. However, they do supply additional evidence of Respondent's repeated violations of A.R.S. 321201.18.(y) as already concluded hereinabove.
(AD) These conclusions of Respondents unprofessional conduct provide the ground to discipline Respondents License 1555. A.R.S. 321263.1. The gravity, variety and numerosity of the Respondents unprofessional conduct in these nine cases amply support the discipline of license revocation, an action lying within the discretion of the Arizona Board of Dental Examiners. A.R.S.32.1263.01.A.1.
Based upon the Findings of Fact and Conclusions of Law as adopted, the Board hereby enters the following Order:
Dr. Terry Lee is hereby CENSURED.
Dr. Terry Lee is hereby placed on PROBATION for a period of five (5) years, with the following terms and condition: (a) CONTINUING EDUCATION Dr. Terry Lee shall obtain education for a total of 48 hours in the following areas: 12 hours crown and Bridge, and 12 hours Occlusion. Courses must be preapproved by the Board's Chief Investigator and Respondent must file verification of completion. Respondent is required to complete the CONTINUING EDUCATION within TWO (2) years. (b) PEER REVIEW During the term of this Probation, Dr. Terry Lee shall be subject to Peer Review by the Board's Chief Investigator, who is authorized to conduct quarterly unannounced visits to Dr. Terry Lee's office. The Investigator shall review Dr. Lee's diagnostic, treatment and planning skills, as well as recordkeeping. The Investigator shall submit written reports to the Board regarding Dr. Lee's Diagnosis and Treatment Planning, and Recordkeeping after each quarterly inspection.
REHEARING Please be advised that according to A.R.S. Section 321263.02(E) and 411092.09, an aggrieved party to this matter may petition the Board for a review or rehearing of the matter. If the party wishes to do so, a written petition must be filed with this office no later than thirty days after service of this Order. If no petition is filed in the allotted time, this Order shall automatically become final.
ISSUED this 24th day of February, 1999 at Phoenix, Arizona.
THE BOARD OF DENTAL EXAMINERS OF THE STATE OF ARIZONA
Julie N. Chapko Executive Director
Copies of the foregoing mailed to:
Dr. Terry J. Lee
Certified Mail Receipt No. ________________
BDE Certified Mail
Receipt No. ________________
Charles G. Brown
This page was revised om February 13, 2005.