Texas State Board of Dental Examiners Defense Lawyer

Texas State Board of Dental Examiners Defense Attorney

Receiving notice of a Board complaint can easily rank as one of the most stressful experiences of a dentist’s career. Anxiety about the possible impact a complaint can have on your reputation and ability to earn a living is very common. Whether the complaint has validity or not, it is also frustrating to have your professionalism and competency called into question.

Given the potential stakes involved, facing the Dental Board alone is rarely a good decision. The Board’s mission is to protect the public, not its licensees. A large part of fulfilling this role involves investigating complaints and disciplining dentists the Board believes have provided substandard care or otherwise violated the Board’s rules. The enforcement wing of the Dental Board has a multi-million-dollar budget and is staffed with full-time investigators and attorneys. The Dental Board aggressively pursues complaints and disciplines a large number of dentists every year.

If you receive a complaint, or even if you only suspect one is forthcoming, it is advisable to promptly consult with an attorney experienced defending clients before the Texas Dental Board. Similar to the importance of seeing the right specialist when seeking dental care, finding the right attorney is crucial to achieving a good outcome. The attorneys at Lype, Dest & Smith Lawyers have a well-established history successfully defending dentists before the Texas Dental Board. This experience helps us ask the right questions and provide clients with an initial assessment of the likely issues in their case and the potential range of results. We also know what type of defense is likely to work given the facts and allegations present in a given case.

Common Sources of Board Complaints

Dentistry is unfortunately a practice area that is highly vulnerable to Board complaints. Unsurprisingly, since much of dental care is paid for partially or completely out-of-pocket, the most common source of Dental Board complaints are patients. Patients frequently use the threat of a Board complaint as leverage to extract a refund from the dentist. 

 

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The second most common source of Board complaints are other dentists. These are often competitors of the dentist targeted by the complaint. A frequent scenario involves a patient seeing another dentist for a second opinion or after the completion of treatment. The second dentist then files a complaint—or encourages the patient to—based on their disagreement with the treatment provided by the first dentist. Many times the dentist filing the complaint is a specialist while the target is a general dentist. Although these types of complaints can sometimes be legitimate, there are many situations where the targeted dentist can feel like they are a casualty in a turf battle. 

Other complaints arise after the dentist files a mandatory report with the Board. For example, Board rules require a dentist to report when a patient dies or is hospitalized as a possible consequence of receiving dental services. The Board will almost always open an investigation after receiving such a report. 

Finally, Medicaid and insurers will sometimes file complaints against a dentist following an audit. If the complaint leads to a disciplinary action, the insurer or Medicaid can then use it as a basis for removing that dentist from their network.

Common Types of Board Complaints

Some of the most common types of Dental Board complaints include:

• Alleged failure to meet the minimum standard of care;
• Failure to make, keep, and maintain adequate records;
• Criminal history including arrests;
• Alcohol or substance abuse;
• Non-compliance with the Board’s sedation rules;
• Dishonorable conduct;
• Inadequate or a misleading discussion of treatment options (failure to engage in fair dealing);
• Inadequate supervision of auxiliary staff;
• Disciplinary action against the dentist’s license in another state;

The Steps in a Dental Board Investigation

A Dental Board investigation begins with the filing of a complaint. The Board will assign an investigator who then sends the targeted dentist a letter notifying them about the complaint and investigation. The letter includes a basic summary of the allegations and will demand that the dentist send the Board a host of records including dental and billing records and other standard documents such as the practice’s emergency plan and proof of the dentist’s recent continuing education hours and certifications. The dentist will also be asked to submit a narrative responding to the allegations.

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If the case involves patient care or record-keeping allegations, the dental records and dentist’s response will be sent to an outside expert for review. The expert will eventually issue a confidential report containing their opinion about whether the dentist violated the Board’s rules or the standard of care. 

If the expert finds one or more violations, the dentist will usually be invited to an informal conference. An informal conference is a closed-door meeting involving the dentist and their attorney on one side, and two to three Board’s members and two or more Board attorneys on the other. At least one of the Board members will be a dentist with the other members sometimes being a dental hygienist or registered dental assistant. 

The dentist has the option of attending the informal conference in person or by videoconference. The person who filed the complaint will be given an opportunity to speak to the informal conference panel in private. The dentist and their attorney are then brought in and the conference begins.  This phase of the conference normally opens with a Board attorney summarizing the allegations at issue. The dentist and their attorney then have a chance to speak and present their defense. During or immediately after the dentist’s presentation, the Board members will ask questions.

The dentist and their attorney will then be asked to leave so the Board members can deliberate in private with the assistance of a Board attorney. During the deliberations the Board members will come to a consensus on a recommended resolution. The dentist and their attorney are then brought back in and told the Board member’s recommendation. This can be a dismissal of the complaint or the offer of a disciplinary order or non-disciplinary remedial plan. 

If the informal conference recommends a disciplinary order or remedial plan, this is put into writing by a Board attorney and sent to the dentist and their attorney for consideration. If the dentist decides to agree to the proposal the signed settlement is next presented to the full Board for ratification. If the full Board ratifies it, the settlement becomes final and its terms go into effect.

If a case is not dismissed or settled through the informal conference process, the Board’s next step will be to file a formal complaint with the State Office of Administrative Hearings. The State Office of Administrative Hearings is a separate state agency responsible for conducting trials and mediations hearing trials and conducting mediations involving the Dental Board and various other Texas agencies. It is staffed by administrative law judges who function independently of the Dental Board.

Prosecution of the case is assigned to a Board attorney experienced in litigating cases at administrative hearings. Prior to going to trial, both parties will have the opportunity to conduct discovery, take depositions, file motions, and engage in other pre-trial maneuvers. Until the trial occurs, it is not uncommon for cases to still settle or be dismissed. 

If the Board and dentist agree, the case can be referred to mediation. Mediation involves a meeting between the dentist and their attorney and a Board member and Board attorney. A neutral mediator will also participate and try and facilitate and agreed settlement. A case is not required to settle at mediation and communications and documents exchanged during its course are considered confidential. If mediation proves unsuccessful, the case will return to the assigned administrative law judge and proceed to trial.

The trial occurs before the administrative law judge; No jury is involved. Both sides will call witnesses, introduce evidence, and present their arguments for why the dentist did or did not violate the Board’s rules. In most cases the judge will request post-trial briefing referencing the trial transcript and admitted evidence. After the trial and any briefing, the administrative law judge will issue their decision. This is called a Proposal for Decision and includes the judge’s findings of fact, conclusions of law, and a recommended sanction if they find the dentist violated one or more Board rules.

The judge’s Proposal for Decision is then presented to the full Board.  The Board can adopt the judge’s findings and recommendation or, with certain limitations, choose to disagree and enter an order departing from the judge’s decision. To further contest the Board’s final order, the dentist will need to file an appeal known as a petition for judicial review. This petition will be heard by a District Court judge in Travis County and can then be appealed all the way to the Supreme Court of Texas.

Darrin Dest

Darrin’s practices primarily in the areas of administrative and health care law, with a focus on the representation of professionals in front of their licensing boards and credentialing bodies. Darrin formerly worked for the Texas Medical Board and currently defends licensees.

Years of experience: 15 years
Bar numbers: 24065146
Location: Austin, TX

Representative Cases

• General Dentist

Case involved a general dentist whose practice focused almost exclusively on implants and other advanced restorations. Client had an extensive disciplinary history and was already on probation with the Board when a new complaint was filed. The Board alleged the client failed to diagnose generalized bone loss and advanced periodontal disease before placing implants. Client also alleged to have not addressed patient’s smoking and drinking habits prior to treatment. The patient experienced the failure of multiple implants, likely due to their habitual drinking and cigar usage. The case proceeded to an informal conference where evidence presented that client’s accurately diagnosed patient and repeatedly counseled them on the need to change their smoking and drinking habits. Case dismissed.

• General Dentist

General dentist received two complaints filed by patient alleging treatment below the standard of care. Board later expanded investigation to include inadequate record-keeping and client’s failure to complete the required number of continuing educations hours before their last license renewal. At an informal conference we presented evidence rebutting standard of care allegations while also showing the client’s subsequent efforts to improve their record-keeping practices. Case dismissed by Board.

• Dentist treating a pediatric Medicaid

Dentist treating a pediatric Medicaid patient accused of performing pulpotomies on eight teeth without clinical or radiographic justification. Client’s recordkeeping was also alleged to have been deficient regarding diagnoses, treatment planning, occlusion notes, and descriptions of decay. The case went to an informal conference where it was dismissed after presentation of defense rebutting the findings of the Board’s expert.

• General Dentist

Complaining patient underwent a routine extraction with a general dentist. Weeks later the patient saw a second dentist complaining of continued discomfort. The second dentist located and removed a residual root tip. In addition to failure to diagnose the residual root tip, the Board alleged client’s recordkeeping was poor and that client had improperly referred to another general dentist as an oral surgeon. Case went to an informal conference and was resolved through a non-disciplinary remedial plan requiring additional continuing education hours.

• Oral Surgeon

Client was an oral surgeon and the case involved an older patient with multiple preexisting medical conditions. During complex oral surgery under deep sedation, the patient’s oxygenation level experienced frequent dips that were corrected. Upon return to the sitting position at the end of the procedure, the patient’s oxygenation plummeted, and they became non-responsive. Patient ventilated and taken to the hospital where they later died. Case went to an informal conference where panel agreed to a resolution involving probation, an administrative penalty, and the completion of additional continuing education hours.

• Dentist

Board alleged dentist fell below the minimum standard of care by failing to make, maintain, and keep adequate records regarding the treatment of a patient. Records alleged to have not included vital signs, a preoperative sedation/anesthesia checklist, documentation of a second dose of an oral sedative, and the names of persons present during the administration of anesthesia drugs. Case went to an informal conference where we presented evidence rebutting allegations where possible and showing remedial steps client had since taken to improve his documentation. Client’s case was dismissed.

• Dentist

Board alleged dentist fell below the minimum standard of care during the treatment of a patient who presented to an extraction appointment with an uncontrolled, elevated blood pressure. Board expert claimed patient needed a pre-appointment antibiotic and should have been rescheduled to obtain medical clearance. After the extraction, EMS arrived and took the patient to the hospital due to low blood pressure and nausea. The informal conference panel elected to dismiss the case after receiving evidence dentist and dental assistant who passed off the patient to the client failed to inform him of their high blood pressure. Board members also agreed that an antibiotic was not required given the absence of any signs of an infection.

• Dentist

Board alleged dentist fell below the standard of care when placing implants to support a partial fixed prosthesis. According to a subsequent treating dentist, the implants failed and had to be replaced. Board also alleged inadequate recordkeeping. Case was resolved through a non-disciplinary remedial plan that required the dentist to complete additional hours of continuing education, retake the Board’s jurisprudence assessment, and pay partial restitution to the patient.

A Law Firm Dedicated to Defending Dentists:

If you have received notice of a complaint from the Texas State Board of Dental Examiners contact the attorneys at Lype, Dest & Smith for a consultation. Facing the Board alone is unnecessary and often leads to a less than optimal result. The longer a dentist waits before obtaining legal representation, the harder it can be to course correct the client’s case and repair any damage that may have already occurred. Disciplinary actions are often avoidable with effective representation. Even when a Board action is inevitable, the range of possible outcomes and their usual effect is often broad. Experienced counsel can significantly improve a client’s ability to secure a good outcome.

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A thorough and experienced lawyer. We are grateful to have Dan and his staff helped us with our case, dealing with Texas Medical Board. Dan is honest, experienced and very thorough. He was supportive throughout the proceedings. His caring and calm nature has made us feel at ease during the whole process. His office staff was professional and responsive. Dan responded to our phone calls and emails promptly. We wholeheartedly recommend Dan and his firm without any reservation.

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