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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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