by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the July-August 1999 issue of the Journal
Question: A dentist friend recently received notification from the state that an investigation has begun against him relative to a potential violation of the Public Health Code. Please explain the legal process that takes place relative to allegations against a dentist, and the rights we have in defending ourselves.
Answer: At the same time it enacted malpractice reform legislation in 1993, the Michigan Legislature also revised the discipline process. The legislation became effective April 1, 1994. Here is an overview of the disciplinary process applicable to dentists.
The Michigan Department of Consumer & Industry Services through the office of Health Services, is responsible for investigating allegations of misconduct. Information suggesting a violation of the Public Health Code may come from virtually any source, including other dentists, health facilities, state agencies, insurance companies, courts and private individuals. If the department determines that there is "a reasonable basis to believe the existence of a violation", the department, with the authorization of the chair of the Michigan Board of Dentistry, must investigate. In addition, the department is mandated to "investigate" if information is received that indicates three or more malpractice settlements, awards, or judgments were issued against a licensee in a period of five consecutive years, or if one or more malpractice settlements, awards, or judgments were levied against a licensee totaling more than $200,000 in a period of five consecutive years.
Within 90 days after an investigation is initiated, the department must do one or more of the following: (a) issue a formal complaint; (b) conduct a compliance conference; (c) issue a summary suspension; (d) issue a cease-and-desist order; (e) dismiss the complaint; or (f) file not more than one extension of not more than 30 days.
If a complaint is issued, the dentist has 30 days from the date of receipt to respond in writing. Failure to respond within the required time frame is deemed to be an admission of the allegations, and the disciplinary subcommittee may impose appropriate sanctions.
At any time during the investigation, or following the issuance of a complaint, a compliance conference may be scheduled. The conference may include the dentist, the dentist's attorney, one member of the department staff, and any other individuals approved by the department. One member of the Michigan Board of Dentistry may also attend the conference to provide assistance.
The purpose of the compliance conference is to attempt to reach agreement. If an agreement is reached, the department must submit a written statement outlining the terms of the agreement to the appropriate disciplinary subcommittee for approval. If the agreement is rejected by the disciplinary subcommittee, or if no agreement is reached, a hearing before a hearings examiner must be scheduled. The parties are not entitled to make a transcript of the compliance conference, and all records of a compliance conference, before a complaint is issued are confidential. The conference itself is closed to the public.
If no settlement agreement is achieved, the hearings examiner must conduct the hearing within 60 days after the compliance conference. One member of the Michigan Board of Dentistry who is not a member of the disciplinary subcommittee may attend the hearing and provide assistance. The hearings examiner, who is employed by or is under contract with the state, must determine if there are grounds for discipline, and prepare recommended findings of fact and conclusions of law for transmittal to the appropriate disciplinary subcommittee.
The hearings examiner has no authority to recommend or impose penalties. One continuance may be granted for good cause shown. The dentist is typically represented by legal counsel, and the department is represented by an assistant attorney general. The assistant attorney general may not be the same individual assigned by the Department of Attorney General to provide legal counsel to the Michigan Board of Dentistry.
The hearings are much like court hearings. Witnesses testify and may be cross-examined, and documents are admitted as exhibits. The rules of evidence apply, but are not as strictly enforced as in a judicial proceeding.
Disciplinary subcommittees assume much of the review and sanctioning authority formerly exercised by the Michigan Board of Dentistry. They are appointed by the chair of the Michigan Board of Dentistry and are composed of three professional members from the board (the chair excluded) and two public members.
Disciplinary subcommittees become involved in the process only after a hearing has been completed. They must meet within 60 days after receipt of the recommendations from the hearings examiner. A disciplinary subcommittee reviews the hearing results to determine whether the hearing established a violation by a preponderance of the evidence (more than 50 percent).
If not, the subcommittee may dismiss the complaint. If so, the subcommittee may impose sanctions, which include licensure revocation, probation, fines and a myriad of other sanctions. A violation determination must be by a majority vote. A decision on a sanction also requires an affirmative vote by at least one of the public members. The disciplinary subcommittee's determination is final. Although reported to the Michigan Board of Dentistry, the board takes no direct role in the sanction. The dentist has a right to appeal the subcommittee's decision directly to the Michigan Court of Appeals.
The current disciplinary process, has streamlined the system. Although not perfect, it provides due-process rights to dentists. It also accelerates the process. The entire proceedings, including the compliance conference, hearing and disciplinary subcommittee action, must be completed within one year after the department initiates an investigation. Unfortunately, there is no statutory sanction if this one-year time requirement is not met, and no appellate court has yet decided the issue.