Rosov v. Maryland State Board of Dental Examiners

SHARER, Judge. The Maryland State Board of Dental Examiners (“the Board”) issued an Order on February 4, 2004, that the license to practice dentistry of appellant, Howard L. Rosov, D.D.S., be permanently revoked for violations of the Maryland Dentistry Act (“the Act”). 1 Appellant sought judicial review in the Circuit Court for Anne Arundel County, following which that court affirmed the decision of the Board. ¹⁰³ Appellant presents for our review one issue, which, slightly-recast, is: Whether the circuit court erred in affirming the decision of the Maryland State Board of Dental Examiners finding that appellant violated the Maryland Dentistry Act, without substantial evidence and in reliance upon the Administrative Law Judge’s proposed decision that included errors of law. We agree with the circuit court that the ALJ committed no errors of law, and that the evidence was sufficient to support the Board’s decision. Therefore, we shall affirm.

FACTUAL and PROCEDURAL HISTORY Appellant has been a licensed dentist in the State of Maryland since 1973, and engaged in a practice as a specialist in endodontics, with offices in Annapolis and Glen Burnie. Rosov is not a stranger to the Board, having been disciplined on other occasions prior to the events that gave rise to the instant case. The history of Board interventions includes: In 1996, he was charged with multiple violations of the Act. In 1998, he entered into a consent order to resolve all disciplinary matters then pending, including the 1996 violations, under the terms of which he was placed on probation for three years for violation of the Act involving conduct that included the failure to properly record treatments; failing to inform patients of treatment alternatives; failing to record anesthesia administered; and failing to record information about medications administered or prescribed, including type, amount, dosage, and/or duration.

On October 8, 2002, the Board summarily suspended his license after investigation of two patient complaints. A resulting Board inspection of his dental office showed numerous and significant violations of Center for Disease Control (“CDC”) Guidelines for universal precautions. 2 At a show cause hear ¹⁰⁴ ing on October 28, 2002, Rosov represented that, as a result of the summary suspension, he had obtained consultation and training regarding his infection control practices and that the infection control errors had been remediated. Accepting his explanation, the Board stayed the summary suspension until December 31, 2003, pending Rosov’s compliance with, and completion of, certain conditions, including the observation of his practice by an expert in CDC compliance, and inspections of his dental practice throughout 2002 and 2003. Rosov’s license was again summarily suspended by the Board on June 18, 2003, following an investigation that gave rise to the current litigation.

The incident that spurred the latest investigation involved a “needle stick” in his treatment of a minor patient. Patient “A” 3 On February 26, 2003, Patient A, an 11 year old female, went with her mother to Rosov’s Glen Burnie office for root canal therapy on one tooth. 4 After the root canal procedure, Rosov recommended, and Patient A’s mother agreed to, the extraction of one of Patient A’s baby teeth. Rosov picked up a syringe containing the anesthetic Lidocain, which had been used for the root canal therapy. After the initial use, the syringe had been recapped and returned to ¹⁰⁵ the tray.

The child was upset and began to cry, so Rosov asked his dental assistant Kimberly Hickman to help calm the patient. At the time, the patient was seated in the dental chair and Hickman was standing to her left; Rosov was sitting on Patient A’s right side, to the rear. Hickman then stood to the right of Rosov, near Patient A’s leg, holding her hand. When Rosov attempted to inject Patient A with the syringe, she moved frantically.

As Rosov pulled the needle away from Patient A’s mouth, his hand holding the syringe went in a downward motion to his light side and came into contact with Hickman’s left leg, sticking her in the left thigh. Hickman reacted by saying “ouch.” Rosov immediately thereafter injected Patient A with the same needle which had stuck Hickman. Patient A’s mother, hearing crying, returned to the room, and it was decided not to proceed with the extraction. 5 The mother was not told about the needle stick incident before she left the office. After having been stuck with the needle, Hickman went into the bathroom.

Thereafter, she informed her co-worker, Stephanie Howard, that she had a red mark on her leg as a result of the stick. Howard advised Hickman to tell Rosov about the needle stick, but she did not. Nor, did she see a physician or follow CDC protocol for management of injuries. As we shall discuss, infra, no complaint was made to the Board about the incident.

Rather, the Board staff became aware as a result of a newspaper article in which the mother of Patient A had been quoted. The Board summarized the basis for its summary suspension: numerous ongoing and repetitive CDC violations as well as the treatment of a particular patient during an episode in which the following was alleged to have occurred: Dr. Rosov attempted to inject Patient A [child patient whose identity was withheld], stuck his dental assistant, KH, with ¹⁰⁶ the same needle when the patient started struggling, and finally used the same needle to inject Patient A. (Footnote omitted.) The Board conducted a Show Cause Hearing on July 2, 2003, to consider (1) Rosov’s representations that the CDC violations had been ameliorated; and (2) affidavits regarding the needle stick incident. Thereafter, the Board stayed the summary suspension pending the outcome of an evidentiary hearing.

On the same day, the Board filed charges against Rosov alleging that he had violated multiple provisions of the Maryland Dentistry Act, specifically, Health Occupations § 4-315(a)(6), (11), (16), (18), (20) and (28). The Board delegated to the Office of Administrative Hearings (OAH) the authority to conduct an administrative hearing and to issue proposed findings of fact and conclusions of law. The OAH conducted a six-day, contested, evidentiary hearing in August 2003, at which the ALJ heard from 11 lay and expert witnesses and considered more than 70 exhibits. The ALJ issued a proposed decision on September 29, 2003, finding that Rosov violated the Maryland Dentistry Act by: Practicing dentistry in a professionally incompetent manner or in a grossly incompetent manner in violation of Health Occ. § 4-315(a)(6); Behav[ing] dishonorably or unprofessionally or violated a code of ethics pertaining to the dentistry profession pursuant to Health Occ. § 4-315(a)(16); willfully made or filed a false report or record in the practice of dentistry pursuant to Health Occ. § 4-315(a)(20); Failing] to comply with the CDC guidelines for universal precautions pursuant to Health Occ. § 4~315(a)(28); Permitting] unauthorized individuals to practice dentistry under his supervision in violation of Health Occ. § 4-315(a)(ll); Violating] rules and regulations adopted by the Board, pursuant to Health Occ. § 4-315(a)(18). ¹⁰⁷ The enumerated violations, the Board found, were based on a “wide spectrum of conduct ... involving the treatment of a minor patient ... and numerous other ongoing actions and omissions in his practice of dentistry generally.” More specifically, the ALJ found violations by a preponderance of the evidence, and which were cited by the Board in its final order, as follows: 1.

Failing to record the type and amount of anesthetic used; 3. Failing to record the attempted extraction; 4. Failing to record the need for a gingivectomy; 5. Injecting the patient with a needle that had just stuck another person; 6.

Failing to act appropriately in response to exposure incident; 7. Failing to follow post-exposure protocols; 8. Transporting contaminated instruments, including sharps, in a duffel bag; 9. Providing misleading and false information to the minor patient’s mother; 10.

Providing misleading and false information to the Board; 11. Failing to provide the Board, pursuant to its subpoena, the March 4, 2003 letter from Rosov to the minor patient’s mother; 12. Directing two of his dental assistants to place and/or expose radiographs, without direct clinical supervision, when they were not certified by the Board as dental radiation technologists and were not acting in accordance with an educational program approved by the Board; 13. Failing to use the timer on the autoclave to time sterilization cycles; ¹⁰⁸ 14.

Reducing the amount of time on the timer mid-cycle of the autoclave; 15. Failing to replace immediately a broken autoclave and using non-sterile instruments during the period when the autoclave was broken; 16. Using an instrument he had used in a patient’s mouth to obtain additional Cavit [Cavit is a substance used as a temporary filling material in dental procedures] or topical anesthetic from the main supply, thereby contaminating the contents in the drawer and further contaminating the instrument he continued to use on the patient; 17. Retrieving unexposed, contaminated x-ray film packets from the bio-hazardous waste container and placing them into treatment room drawers for later use on patients; 18.

Stomping down bio-hazardous waste in a container with his foot; 19. Pulling Cavit, which had stuck to his shoe after stomping bio-hazardous waste, off of his shoe with gloved hands and then proceeding to treat a patient wearing the same gloves; 20. Re-using dirty gloves; 21. Other failures and omissions evident at the time of . various inspections by a CDC consultant, as follows: a.

October H, 2002 — failing to maintain complete written office protocols for Bloodborne Pathogen, Hazard Communication and the Universal Precautions Standards; failing to have available verifiable sterilization of instruments, handpieces, endodontic files and burs; b. October 22, 2002 — failing to maintain a complete written exposure control plan; c. October 25, 2002 — failing to complete the organization of the sterilization and prep areas; d. October 28, 2002 — placing and/or storing multiple bags of instruments in treatment drawers and instru ¹⁰⁹ ment storage baskets with process monitors incompletely processed or entirely unprocessed; attempting to re-cap a needle using the two-hand technique; attempting to use a contaminated instrument to get Cavit from the main source; e.

December 23, 2002 — placing and/or storing multiple bags of instruments in treatment drawers and instrument storage baskets with process monitors incompletely processed or entirely unprocessed; f. May 5, 2002 — placing and/or storing multiple bags of instruments in treatment drawers and instrument storage baskets with process monitors incompletely processed or entirely unprocessed; placing inverted latex gloves in his lab coat pocket; failing to make available staff training documents for a new employee; failing to use heavy duty gloves for processing instruments; allowing the bio-hazardous box to overflow with waste; allowing the continued unreliable operation of the autoclave. Rosov and the State filed exceptions to the ALJ’s proposed decision, and an exceptions hearing was held on December 8, 2008. In consideration of the entire record, the Board, with certain limited exceptions, adopted the proposed decision of the ALJ, and incorporated it by reference in its Final Order that permanent revocation of Rosov’s dental license was necessary to protect the public.

This appeal followed. DISCUSSION Standard of Review The standard of appellate review of administrative agency decisions requires us to review the decision of the agency, not of the circuit court. Dep’t of Health & Mental Hygiene v. Shrieves, 100 Md.App. 283, 303-04 , 641 A.2d 899 (1994). “Judicial review of administrative agency action is narrow.” Mayer v. Montgomery County, 143 Md.App. 261, 270 , 794 A.2d 704 (2002)(quoting United Parcel Serv. v. Peo ¹¹⁰ ple’s Counsel for Baltimore County, 336 Md. 569, 576 , 650 A.2d 226 (1994)). To the extent that issues on appeal turn on the correctness of an agency’s findings of fact, such findings must be reviewed under the substantial evidence test. [Dept. of Human Resources v. Thompson, 103 Md.App. 175, 190 , 652 A.2d 1183 (1995) ] (citing State Election Bd. v. Billhimer, 314 Md. 46, 58-59 , 548 A.2d 819 (1988)).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 191 , 652 A.2d 1183 (quoting Caucus Distributors, Inc. v. Md. Securities Comm’r, 320 Md. 313, 323-24 , 577 A.2d 783 (1990)). See also Relay Improvement Ass’n v. Sycamore Realty Co., Inc., 105 Md.App. 701, 714 , 661 A.2d 182 (1995), aff'd, 344 Md. 57 , 684 A.2d 1331 (1996) (stating that “substantial evidence means more than a ‘scintilla of evidence,’ such that a reasonable person could come to more than one conclusion.”). In other words, the question on appeal becomes whether a reasoning mind could reasonably have reached the agency’s factual conclusion. [Eberle v. Baltimore County, 103 Md.App. 160, 166 , 652 A.2d 1175 (1995) ]. We may not uphold the agency’s decision “ ‘unless it is sustainable on the agency’s findings and for the reasons stated by the agency.’ ” United Parcel Serv., Inc. v. People’s Counsel, 336 Md. 569, 577 , 650 A.2d 226 (1994) (quoting United Steelworkers v. Bethlehem Steel, 298 Md. 665 , 472 A.2d 62 (1984)).

Maryland State Dept. of Educ. v. Shoop, 119 Md.App. 181, 196-97 , 704 A.2d 499 (1998). We may affirm the decision of the agency, or remand the matter for further proceedings, or reverse or modify the decision if any substantial right of the petitioner has been prejudiced because a finding, conclusion, or decision (i) is unconstitutional; (ii) exceeds the statutory authority or jurisdiction of the final decision maker; (iii) results from an unlawful procedure; ¹¹¹ (iv) is affected by any other error of law; (v) is unsupported by competent, material, and substantial evidence in light of the entire record as submitted; or (vi) is arbitrary or capricious. Md.Code Ann., State Gov’t § 10-222(h) (1999 Repl.Vol.). As we have noted, the charges against appellant were numerous and all were presented to the ALJ and the Board for decision.

Nonetheless, appellant devotes his brief and appellate argument to his perceived errors involving the “needle stick” incident, to the virtual exclusion of all the other charges. We shall discuss his arguments in turn. The Board’s Investigative Report Maria Bartrem, an investigator employed by the Board, conducted an inquiry and interviewed a number of witnesses. She compiled a confidential report consisting of 12 pages of background and witness statements and interviews.

Appended to the report were 341 pages of records, reports, and other documents that had been generated as a result of the “needle stick” incident, and other incidents. 6 Rosov argues that the Bartrem report was biased and included non-evidentiary, inadmissible, and highly prejudicial material. 7 He alleges errors of law by the ALJ in reliance on the report because his counsel did not have access to the author during the investigation (as did the Board staff) and because Bartrem was not available for cross-examination. Preliminarily we note that Rosov’s allegation that all references in Bartrem’s report to his closed cases before the Board were improper and prejudicial must fail. His counsel commented before the ALJ: ¹¹² I don’t have any objection to — those are in the final order of November 20, 2002, final decision and order, that the inspections and unannounced visits and that had — I’m not objecting. What I’m objecting to is everything that came before that, 1998, 1996, the termination of his probation, the summary suspension in October, and the transcript of the Show Cause hearing in October.

If a party fails to object, “he will not later be heard to complain that the evidence should not have been admitted.” Ginn v. Farley, 43 Md.App. 229, 236-37 , 403 A.2d 858 (1979) (quoting Baltimore & Ohio R.R. v. Black, 107 Md. 642, 658 , 69 A. 439 (1908)). Therefore, we consider any appellate objection by Rosov to the acknowledgment of disciplinary actions subsequent to 1998 to have been waived. 8 Section 10-213 of the State Government Article of the Maryland Code Annotated governs the admissibility of evidence in administrative proceedings: (a) (1) Each party in a contested case shall offer all of the evidence that the party wishes to have made part of the record. (2) If the agency has any evidence that the agency wishes to use in adjudicating the contested case, the agency shall make the evidence part of the record. (b) The presiding officer may admit probative evidence that reasonable and prudent individuals commonly accept in the conduct of their affairs and give probative effect to that evidence.

(c) Evidence may not be excluded solely on the basis that it is hearsay. (d) The presiding officer may exclude evidence that is: (1) incompetent; (2) irrelevant; ¹¹³ (3) immaterial; or (4) unduly repetitious. (e) The presiding officer shall apply a privilege that law recognizes. (f) On a genuine issue in a contested case, each party is entitled to: (1) call witnesses; (2) offer evidence, including rebuttal evidence; (3) cross-examine any witness that another party or the agency calls; and (4) present summation and argument.

(g) The presiding officer may receive documentary evidence: (1) in the form of copies or excerpts; or (2) by incorporation by reference. (h) (1) The agency or the Office may take official notice of a fact that is: (i) judicially noticeable; or (ii) general, technical, or scientific and within the specialized knowledge of the agency. (2) Before taking official notice of a fact, the presiding officer: (i) before or during the hearing, by reference in a preliminary report, or otherwise, shall notify each party; and (ii) shall give each party an opportunity to contest the fact. (i) The agency or the Office may use its experience, technical competence, and specialized knowledge in the evaluation of evidence.

Md.Code, State Gov’t § 10-213. Hearsay evidence is admissible before an administrative forum in contested cases and, if such evidence is credible and sufficiently probative, “ ‘it may be the sole basis for the decision of the administrative body.’ ” Fairchild Hil ¹¹⁴ ler Corp. v. Supervisor of Assessments for Washington County, 267 Md. 519, 523 , 298 A.2d 148 (1973) (quoting Redding v. Bd. of County Com’rs, 263 Md. 94, 110-11 , 282 A.2d 136 (1971)). Administrative agencies, while not required to adhere to technical common law rules of evidence, must observe the basic rules of fairness. Dal Maso v. Bd. of Co. Com’rs, 238 Md. 333, 337 , 209 A.2d 62 (citations omitted).

The Court of Appeals explained in Montgomery County v. Stevens, 337 Md. 471 , 654 A.2d 877 (1995): “[t]he mere exposure to evidence presented in nonadversary investigative procedures is insufficient in itself to impugn the fairness of the Board members at a later adversary hearing. * -1: * “It is ... very typical for the members of administrative agencies to receive the results of investigations, to approve the filing of charges or formal complaints instituting enforcement proceedings, and then to participate in the ensuing hearings. This mode of procedure does not violate the Administrative Procedure Act, and it does not violate due process of law.” Id. at 485 , 654 A.2d 877 (quoting Withrow v. Larkin, 421 U.S. 35, 55-56 , 95 S.Ct. 1456 , 43 L.Ed.2d 712 (1975)). We have noted the Supreme Court’s reluctance to find the violation of due process rights based on “impermissible blending of adjudicative and investigatory functions.” Nationwide Mut. Ins.

Co. v. Ins. Com’r, 67 Md.App. 727, 740 , 509 A.2d 719 (1986) (citing Withrow, supra). The Withrow Court rejected a denial of due process claim, stating The contention that the combination of investigation and adjudicative function necessarily creates as unconstitutional risk of bias is administrative adjudication has a much more difficult burden of persuasion to carry. It must overcome a presumption of honesty and integrity in those serving as adjudicators; and it must convince that, under a realistic ¹¹⁵ appraisal or psychological tendencies and human weakness, conferring investigative and adjudicative powers on the same individuals poses such a risk of actual bias or prejudgment that the practice must be forbidden if the guarantee of due process is to be adequately implemented.

Withrow, supra, 421 U.S. at 47 , 95 S.Ct. 1456 . Rosov has not met the Withrow burden. Rosov refers us to the statement in Bartrem’s report that “[Bartrem] and [the State] interviewed [Stephanie] Howard under oath.” His complaint is founded upon the fact that his counsel was not present at this interview, that counsel was not permitted to question Stephanie Howard at that time, and that the State unfairly participated in the interviews that were included in the report. We know of no requirement, either in law or investigative technique, that compels an investigative agency, prior to charging, to include the investigation target or counsel in the interview process.

The Board’s investigative processes to determine whether charges are justified and sustainable violates neither Withrow nor the Administrative Procedure Act. Safeguards were available for Rosov — the interview was taken under oath and Howard was available for cross-examination at the administrative hearing. Rosov next alleges that the entire Bartrem report was hearsay, was unauthenticated by the investigator, and would not have been admitted in a judicial trial. We cannot disagree with his conclusion about admissibility in a judicial proceeding.

That does not, however, preclude admissibility at the administrative level. Under the relaxed rules of evidence applicable in an administrative hearing, the focus is whether admitted hearsay was credible and sufficiently probative. Rosov asserts that the report reveals Bartrem’s biased viewpoint, and cites “major defects in the manner of the investigation, including the participation of the State but not Dr. Rosov, the documentation of the investigation, the manner of how conclusions were reached, etc.” But, he provides no support in the record for his allegation that the investigation ¹¹⁶ was substantially defective. He presented no evidence that Bartrem’s manner of investigation was faulty, nor does the record support such a conclusion.

Rosov rests his argument on the fact of Bartrem’s employment by the Board and interaction with the staff during the investigation. If that were that the standard, any such report, by any agency charged with the enforcement of professional standards, would be suspect. The AL J did not err in admitting the report. A fair reading of the report discloses that it contains summaries of statements made by witnesses, not the opinions of the investigator.

All but one of those who were interviewed by the investigator testified at the administrative hearing and were subject to cross-examination, thus curing any harm of hearsay within the report. 9 Finally, Rosov argues, somewhat disingenuously, that the report should not have been admitted because he did not have the opportunity to cross-examine Bartrem. Of course, he must concede that he did not issue a subpoena for Bartrem to compel her attendance at the administrative hearing. He further asserts that he was not informed that she would not be testifying until the start of the hearing. All of that, he posits, is conclusive that the entire case was “presented by a phantom” due to Bartrem’s absence.

His assertions are without merit. Our decision in Travers v. Baltimore Police Dept., 115 Md.App. 395 , 693 A.2d 378 (1997), is instructive. Travers, a former Baltimore City police officer, was accused of violating departmental rules and regulations. Id. at 400 , 693 A.2d 378 .

He alleged that the administrative trial board erred in admitting hearsay statements of the alleged victim through the testimony of other officers, depriving him of the opportunity to ¹¹⁷ cross-examine the alleged victim. Id. at 407-408 , 693 A.2d 378 . Travers had not subpoenaed the alleged victim. We opined: Nonetheless, because appellant failed to exercise his right to subpoena [the victim] see Md. Ann.Code, art. 27 § 730(j), we conclude that he has effectively waived his right to complain about a denial of the opportunity to cross-examine [the victim].

In 1971, the Supreme Court