Maine dentists allege unfair treatment by dental board

After a number of dentists testified in May at a hearing before the Maine Regulatory Fairness Board claiming they have been unfairly disciplined by the Maine Board of Dental Examiners, a member of the regulatory board said the dental board's complaint process needs to be changed.

"It's undemocratic, unfair, and absolutely stacked in favor of the [dental] board," Ed Phillips, a member of the regulatory board, told DrBicuspid.com.

It's difficult for Maine dentists to get a fair hearing before the dental board, and they often are denied their due process rights, he said.

Nearly homeless

Krista Nordlander, D.D.S. -- one of the dentists who testified in May -- said she lost her license and business and was forced to sell her home and leave the state in the aftermath of a 2002 complaint that she had "abandoned" a patient.

A dispute with the dental board president, Denise Theriault, D.M.D., over office space left her with no place to see patients, she said. Dr. Theriault reneged on an agreement to turn over her office space when a planned partnership fell through, according to Dr. Nordlander. Dr. Theriault did not return calls for comment, but a board spokesman noted that she recused herself from deliberations about the case and did not vote on the final decision to revoke Dr. Nordlander's license.

After being forced to temporarily close her practice, Dr. Nordlander said she notified her patients, but one man complained when she wasn't able to do a denture adjustment. She even forgave the patient $800 that he owed her so he could find another dentist, she said.

When she tried to explain the situation to the dental board during a hearing on the matter, "they consistently ignored my explanations," she told DrBicuspid.com. "It made no difference that the only reason was that I had no office and temporarily couldn't see any of my patients."

The board also ordered Dr. Nordlander to undergo physical and psychiatric examinations, which she paid for, and to pay almost $2,000 more for costs associated with the investigation.

"They claimed that I was blaming others for my problems so I must have a psychiatric problem," she said.

Requiring dentists in disciplinary hearings to get psychiatric exams "seems to be a favorite thing of the board," said Phillips, adding that he doesn't think it's fair to require dentists being investigated by the dental board to pay for the investigation.

Dr. Nordlander said getting another job has been difficult because her name is now on the National Practitioner Data Bank (NPDB) of dentists who've been disciplined. She has a license in Massachusetts and has moved there, but has only been able to get temporary assignments and may lose her home in July when the lease is up, she said.

Changes needed

Jonathan Shenkin, D.D.S., M.P.H., president of the Maine Dental Association, told a meeting of the dental board in March that Maine dentists have voiced anger and frustration regarding the complaint process, and he urged the board to dismiss clearly frivolous complaints without requiring lengthy investigations and undue scrutiny of their records.

Changes are needed, he told DrBicuspid.com, "so that dentists who have really done nothing wrong at all don't have to go through this process, getting their records scrutinized and the stress and frustration of going through the board's complaint process if there's been absolutely no grounds [for the complaint] in the beginning."

And it's wrong to allow the same board members to oversee the disciplinary hearing and then subsequent appeals of their decision if the accused dentist declines to sign the consent agreement, Dr. Shenkin added.

"My goal is fairness in the process," he said. "We need to have two separate bodies on the board to break up the review of cases and the appeal of cases so it's not the same people."

Maine dentists aren't the only ones who feel they've been unfairly treated by their state dental boards, Dr. Shenkin noted. "I've heard about other dental boards having a 'no holds barred' policy," he said. "This is not a special situation."

Dr. Shenkin also acknowledged that the board does fill a necessary function. "The role of the board has been to protect the public, and generally they do a good job," he said said. "I want to refine the system so the public continues to be protected, but at the same time there aren't unnecessary investigations conducted toward dentists that obviously have done nothing to deserve further investigation beyond the initial complaint."

Two other cases

In 2009, Joseph Benedetto, D.D.S., was ordered by the dental board to take risk and patient management classes for "failing to communicate in a professional manner" with a female patient.

After tolerating what he described as a "rude and troublesome denture patient" for more than six months, Dr. Benedetto said the patient "crossed the line and I had reached my limit of endurance," he told the regulatory board in May. "I had the audacity to call her a pain in the a--," he admitted, adding that he "could have chosen a better way of dealing with her."

The dental board's unnecessary scrutiny of her dental chart resulted in a "surrealistic kangaroo court in which they humiliated me with insinuations and allegations that were either trivial and/or unsubstantiated," Dr. Benedetto said. The patient later filed a "frivolous" medical malpractice lawsuit based on the board's insinuations, he said.

The worst part of the process, Dr. Benedetto noted, is that his malpractice insurance jumped from $550 a year to $7,500 because his name was added to the NPDB's list of disciplined dentists. He has since retired.

Dentists who do actual patient harm often get only a slap on the wrist, Drs. Benedetto and Nordlander said. They pointed to the case of Elizabeth Archer, D.D.S., who accidentally pulled the wrong front tooth of a child. Dr. Archer admitted "extraction of the wrong tooth caused harm to the pediatric patient," according to board records. But despite the actual physical harm to the patient, she was only required to take classes regarding oral surgery diagnosis and dental anatomy.

Legal recourse

Dentists who want to appeal the dental board's decisions do have recourse through the civil court system, according to Dr. Shenkin, noting the case of an oral surgeon who took his appeal to court and got the board's decision overturned.

In 2007, the dental board charged Robert D. Moore, D.D.S., with unprofessional conduct and incompetence after he perforated a patient's sinus bone during surgery. Dr. Moore appealed the board's findings to the Maine Superior Court.

The judge overturned the board's decision because a consulting dentist who advised the patient to file a complaint was also a board member, which was a conflict of interest. The judge found that the situation made it "highly probable that his case was heard by a tribunal susceptible to a risk of bias or unfairly predisposed against him" -- a combination that "created an intolerable risk of bias or unfairness," he concluded.

But appealing dental board decisions can be difficult and expensive, Phillips said. "And the Superior Court has a tendency not to override the board," he said. "It's very iffy and the luck of the draw."

Phillips also advocates changing the rules for what kind of evidence can be used during a disciplinary hearing. "Now the rules of evidence don't apply, so they accept hearsay, printed copies of blogs, all kinds of things that would never stand up in a court of law," he said.

In addition, the dental board can choose to have the hearing in district court, but the dentists do not have the same option, Phillips said. The board never opts for court hearings because it has to pay all the expenses if it loses, he said. When Dr. Moore's decision was overturned, the board was forced to impose a special assessment on its member to pay for expenses, he noted.

A proposed bill that will be considered next year by the state Legislature would reinstate the ability for administrative law judges to hear complaint cases. However, all the state's professional boards and the state attorney general's office have opposed the legislation, Phillips noted.

Still, "I think we're making headway. I'm not judging the evidence; I'm judging the process. I just want to see our people treated fairly," he said.

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