Thanks for visiting! Welcome to a new way to research case law. You are viewing a free summary from Descrybe.ai. For citation and good law / bad law checking, legal issue analysis, and other advanced tools, explore our Legal Research Toolkit — not free, but close.
In re the Disciplinary Action Against Wang
Citations: 417 N.W.2d 268; 1987 Minn. App. LEXIS 5138; 1987 WL 25451Docket: No. C6-87-1337
Court: Court of Appeals of Minnesota; December 28, 1987; Minnesota; State Appellate Court
Dr. Joseph Wang appeals the Minnesota Board of Dentistry’s decision to suspend his dental license due to allegations of making suggestive advances toward patients and improperly prescribing a legend drug. The Board's ruling included a condition requiring Wang to pay $35,000 towards the costs of the proceedings. The court affirmed the suspension but reversed the cost imposition.
Wang, a dentist and oral maxillofacial surgeon since 1976, faced charges initiated by the Board in December 1985 based on two main allegations. First, he was accused of making inappropriate advances to three female patients, violating Minn. Stat. 150A.08, subd. 1(6) and Minn. R. 3100.6200(C).
The findings regarding improper advances involved:
1. **D.C.** - During treatment in 1983, Wang made comments about her engagement and attempted to kiss her after removing stitches.
2. **C.J.** - After surgery in the fall of 1983, Wang touched her breasts and made inappropriate comments about her dating life.
3. **N.G.** - Post-surgery in February 1984, Wang asked personal questions about her dating life while rubbing her hand and making contact with her breasts.
The Administrative Law Judge (ALJ) determined these actions constituted violations of the relevant statutes.
Dr. Wang improperly prescribed tetracycline to David Jefferson following a wisdom tooth extraction on September 10, 1982, during which he noted the patient's acne. In early 1983, Gordon Jefferson, claiming to be a medical doctor, contacted pharmacist Ray Pierskalla to obtain acne medication. After discovering Mr. Jefferson was not licensed, Pierskalla received a call from him on March 26, 1983, requesting a refill of tetracycline. Dr. Wang subsequently authorized the prescription and additional refills on April 23, July 9, and August 22, 1983. The Administrative Law Judge (ALJ) determined that Wang violated Minn.Stat. 150A.08, subd. 1(5) (1984) by prescribing and refilling the medication.
The Board upheld the ALJ's findings, suspending Wang's dental license for at least one year, with the possibility of a stay after 60 days if he pays $35,000 to cover the Board's costs. Issues raised include whether substantial evidence supports the Board's findings regarding Wang's violations and whether the Board abused its discretion by conditioning the suspension stay on payment. The Board concluded Wang's conduct towards three female patients was unbecoming, as defined by the Board's rules, including making improper advances.
Wang contested the Board's findings, arguing they were not supported by substantial evidence, citing testimonies from his staff and the alleged implausibility of the patients’ claims. The ALJ, however, found the patients’ testimonies more credible than Wang's defense, and the court noted it cannot reassess witness credibility. The Board’s decision was not deemed contrary to the evidence presented.
The Board determined that Dr. Wang violated the 1983 version of Minn.Stat. 150A.08, subd. 1(5) concerning the authorization of two refills of a prescription for tetracycline. Wang contests the Board's finding, arguing both that there is insufficient evidence to support the claim that he authorized the refills and that even if he did, it did not constitute a violation.
Wang admits to initially prescribing the medication but denies authorizing subsequent refills. However, evidence presented included testimony from the Board's investigator, who stated that Wang confirmed he authorized the refills, and pharmacy records showing handwritten confirmations ("OK Dr. Wang") next to each refill. Testimony from Mr. Pierskalla indicated that these confirmations might have resulted from communication from Mr. Jefferson, whose credibility was doubted by the Judge due to prior suspicions. Ultimately, the Judge found substantial evidence that Dr. Wang authorized the refills.
Additionally, the Board classified Wang's actions as improper or unauthorized prescribing of a legend drug, as prescribed by Minn.Stat. 150A.08, subd. 1(5). It concluded that prescribing tetracycline for acne treatment was outside the scope of practice for an oral maxillofacial surgeon, unless related to surgical procedures that might risk infection. The Board's expert, Dr. Daniel Gatto, supported this finding, clarifying that prescribing such medication solely for acne treatment is not within a maxillofacial surgeon's practice, which is inherently linked to dental care.
Wang argues against the fairness of being sanctioned under a vague "scope of practice" standard. However, the Board's actions were deemed appropriate, with the statutory definition of dental practice being clear. Wang's prescribing tetracycline to an ex-patient for acne treatment was found to be so outside his scope that he could not claim ignorance of its impropriety.
The Board’s order states that Wang’s suspension will be stayed after 60 days if he agrees to pay $35,000 towards the costs incurred in the proceedings. However, the record does not support this assessment. On appeal, the Board provided an affidavit detailing total costs of $38,760.83 associated with the proceedings, including expenses for hearings, expert witnesses, and the Attorney General’s office.
The Board's action raises two main issues: whether it can require Wang to pay certain expenses and whether he received adequate notice and opportunity to respond to the assessment. Under Minn.Stat. 150A.08, subd. 3 (1986), the Board may require a licensee to pay all costs associated with the suspension of a license. Wang contends that the Board cannot mandate payment for the salaries of the Administrative Law Judge (ALJ), court reporter, and attorneys from the attorney general’s office. While statutes imposing "costs" typically exclude attorney’s fees, this statute allows for "all costs of proceedings," which has been interpreted to include payments for ALJ and court reporter services. The majority of costs assessed against Wang relate to the attorney general’s office, which the Board must compensate for its reasonable services as per Minn. Stat. 214.04, subd. 2 (1986).
Despite the Board's discretion to impose these costs, its method of doing so was improper, as there was no supporting evidence for the $35,000 assessment. An affidavit submitted on appeal, executed two months after the assessment order, was not part of the record and would not have sufficed even if it had been submitted timely. Its vague nature hindered Wang's ability to challenge the assessment's accuracy, raising due process concerns, as meaningful notice and opportunity to be heard are required prior to property deprivation. Wang's request for clarification on the basis of the $35,000 was noted, and the Board is directed to provide him with the underlying documentation and a chance to respond.
The decision concludes that the Board's suspension order is affirmed except for paragraph 3(c) regarding the $35,000 payment, which is reversed and remanded for further proceedings.