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Court properly denied dentist’s petition for judicial review

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The Indiana Court of Appeals has affirmed the denial of a dentist’s petition for judicial review of a decision by the State Board of Dentistry which found he violated Indiana Code after a patient’s wisdom teeth surgery.

The patient, referred to as Patient A in the court opinion, had her wisdom teeth removed by Dr. Donald Walker in 2008. When she woke after the surgery, she felt like she was gasping for air and was told to stop because she was scaring other patients. Walker then placed his hand over her mouth and held it there for a few seconds, which really scared her, according to the opinion.

The patient was taken to a recovery room by two hygienists, but was left alone for several minutes despite her drowsy state. She felt rushed out of the office and saw a different dentist for follow-up care.

Patient A filed a complaint with the Attorney General’s Consumer Protection Division and a hearing before the dentistry board was held in October 2012. The board found Walker violated I.C. 25-1-9-4(a)(3) in that he violated 828 IAC 3-1-6.5(c)(10) by failing to provide continual and direct supervision of the patient by a person trained in basic cardiac life support. It also found Walker violated I.C. 25-1-9-4(a)(4)(B) in that he failed to keep abreast of current professional theory by using the “hand-over-mouth” technique on adult patients. The technique was taught in dental schools and accepted for pediatric patients up until the 1980s.

Walker claimed the board applied the wrong definition to the phrase “direct supervision,” which is not defined as used in 828 IAC 3-1-6.5(c)(10). The board concluded that “continual and direct supervision” was not being provided when the hygienist is in an adjacent room and providing treatment to another patient. The judges found this interpretation to be reasonable.

“The evidence established that Dr. Walker was aware that patients in the holding room were sometimes supervised by a hygienist who was across the hall treating another patient. Further, Patient A testified that she was left alone in the holding room, and the Board found her credible. We cannot reweigh the evidence or judge the credibility of the witnesses. We conclude that the Board properly found that Dr. Walker violated 828 IAC 3-1-6.5(c)(10) by knowingly failing to provide ‘continual and direct supervision by a person trained in basic cardiac life support’ to a recovering patient,” wrote Judge Michael Barnes in Donald R. Walker, D.D.S. v. State Board of Dentistry, 49A02-1307-MI-593.

The judges also found the evidence presented supports the board’s findings that Walker violated I.C. 25-1-9-4(a)(4)(B) by using the hand-over-mouth technique on Patient A. The board relied on the testimony of several oral surgeons to hold that the technique is not current professional theory or practice for use on adult patients.
 

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  2. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  3. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  4. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  5. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

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