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DENTAL DANGERS: How the Dental Board of California investigates dentists

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DENTAL DANGERS: How the Dental Board of California investigates dentists

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Over three decades, more than a dozen patients have claimed that one dentist’s shoddy work left them with issues varying from bone loss and excessive drooling to ill-fitting teeth or other problems. Meanwhile, state dental regulators are of little help to the rest of us.

Rachel Cook wrote this story for The Bakersfield Californian as a 2013 California Health Journalism Fellow. Other articles in this series can be found here:

DENTAL DANGERS: Dentist’s malpractice claims span three decades

DENTAL DANGERS: Local dentist's invisible complaint file underscores dental board's shortcomings

(Photo by Irina Patrascu via Flickr)
(Photo by Irina Patrascu via Flickr)
Bakersfield Californian
Monday, July 21, 2014

Consumer complaints against dentists pass through a rigorous system of investigation and dental experts before the Dental Board of California makes any disciplinary move.

In the most severe cases, the dental board turns to the California Office of the Attorney General to file an accusation — a formal complaint — against a dentist on the board's behalf.

That's what happened in the case of Dr. Robert Tupac.

Only a small number of complaints by patients result in accusations from the dental board, and those cases take an average of 2 1/2 years to resolve, and only after passing through a laborious and labyrinthian process.

While the Dental Board does post records of settlements and outcomes in disciplinary cases on its website, the law doesn’t mandate that dentists tell their patients and potential patients if they are on probation.

Disciplining dentists

In fiscal year 2012-13, the dental board received 2,868 complaints, opened 719 cases and closed 813 cases, according to data from its May meeting. Based on the data, 85 cases were referred to the attorney general's office and 19 were referred for a criminal investigation. Cases referred to the attorney general's office may have been under investigation for months.

It is rare a case ends with a dentist losing his or her license. From fiscal years 2008-09 to 2012-13, the board revoked an average of about 12 licenses each year. The board put an average of 58 dental professionals on probation each year during that same time frame.

As of March 2014, the board had revoked six licenses in the 2013-14 fiscal year.

Investigations are time-consuming: From fiscal years 2008-2009 to 2012-2013, the dental board took an average of 436 days to close a case. But cases referred to the attorney general's office for discipline took an average of about 925 days to close.

Statistics on investigations and complaints handled by the board are listed in the California Department of Consumer Affairs' annual reports and in the board's meeting materials, but it is difficult to compare numbers year-by-year because the formats of the reports periodically change and different figures are reported. The statistics are not broken down by the professions the board regulates such as dentists, registered dental assistants and registered dental assistants in extended functions.

"It's very, very time-consuming given the old databases that we have right now," said Russell Heimerich, a spokesman for the state Department of Consumer Affairs.

If the AG's office files an accusation against a dentist, it is posted on the dental board's website under dentists' license information, which can be found under the "License Verification" tab on the site.

A formal case was filed against Tupac but the dental board took no immediate steps to prevent him from practicing. Essentially, the board has two avenues it can take to immediately stop a dentist from treating patients.

One option is to request an interim suspension order from an administrative law judge to forbid a dentist from practicing. But Kim Trefry, the board's enforcement chief, said that type of order creates a time crunch for the board because an accusation — the document outlining what the dentist did wrong and seeking to discipline the dentist — must be filed within 45 days after the suspension order is granted.

"If it's a question of quality of care, somebody's implants didn't fit right, that's not necessarily where we would go after an interim suspension order," said Heimerich.

"So we only go after those where a dentist is actually harming consumers and there is an indication that he's gonna continue to cause grievous harm to consumers."

The second option occurs if the board deems a case particularly egregious -- such as a dentist groping patients. Then it can try to suspend the dentist's license immediately by appealing to a judge, Heimerich said. If a criminal case is in progress, the dental board can request a superior court judge prevent a dentist from practicing.

Heimerich said none of the boards under the California Department of Consumer Affairs discusses complaints against licenses as a matter of policy.

Accusation process

After an accusation is filed with the attorney general's office, as in the ongoing Tupac case or one involving any other dentist, the issue may be settled or go to a hearing before an administrative law judge.

During those hearings, the dentist's attorney and an attorney from the AG's office present their cases through the testimony of patients, dentists and expert witnesses.

The judge sends a proposed decision on the matter to the dental board. State law stipulates the dental board be comprised of eight dentists, one dental hygienist, one dental assistant and five members of the public. But there may be vacancies at any given time.

The board can adopt the judge's decision as is, or change it. Eight of the board's members must approve the judge's decision for it to be enforced.

There are other options for the dental board besides filing an accusation. It can take informal action against a dentist accused of wrongdoing by issuing a citation.

"You can have a citation essentially saying, 'Somebody didn't do something quite right,' without a fine," said Karen Fischer, the board's executive officer. "But most of our citations include a fine."

Fischer said citations are not posted on the dental board's website because they aren't considered discipline, but consumers can call the board to find out if a dentist has been cited.

"We wouldn't be able to necessarily say (to the caller) why, but we would be able to say that a citation was issued," she said.

In contrast, the Medical Board of California, which licenses and regulates physicians, posts all actions — including warning letters — online.

The medical board also sends out disciplinary alerts via email twice a month listing actions taken against physicians. Anyone can subscribe to these lists online. The dental board does not offer a similar notification system for the public.

The dental board does post records of settlements and outcomes in disciplinary cases on its website. But dentists disciplined by the board aren't always required to tell patients if they are on probation.

Notifying patients is not a standard requirement of all dentists' probation, said Kim Trefry, the dental board's enforcement chief.

In addition, Fischer said, it is not a requirement of current Disciplinary Guidelines or other statute or regulation.

"We cannot legally require probationary dentists to adhere to conditions outside what current law allows," Fischer said.

However, dentists may be required to post a written notice visible to all patients stating the dentist is not allowed to perform a particular dental procedure. Dentists who are required to have someone monitor them when they see certain patients — such as women or minors — must provide written notice to patients stating the monitor will be "present during all consultations, examinations, or treatment" with certain patients.

Administrative law judges can deviate from the board's guidelines and discipline a dentist as they see fit, according to dental board staff.

If a dentist's license is revoked, how long he or she must wait to try to regain it — or if it can be regained — depends on the disciplinary order.

But in general, dentists can ask the board for reinstatement after three years, according to the dental board.

Even if a dentist's license is revoked in California, he or she could potentially still practice in another state, Fischer said.

"The Dental Board of California reports adverse licensing actions to the National Practitioners Data Bank so that other states who may also hold licenses on an individual are notified of revocations and other actions," she wrote in an email. "However, it would be up to the individual states to determine what, if any, additional action they may take against the license in another state based upon action taken in California."

Who's in charge

In California, the dental board is one of boards among the 39 "regulatory entities" in the California Department of Consumer Affairs.

Along with the Medical Board of California and the Acupuncture Board, the dental board is classified as one of the department's 20 "healing arts" boards.

All of the agency's funding comes from fees paid by the professionals it regulates, including licensing fees, permits and money recovered from enforcement cases.

Until recently, California dentists paid a $365 initial fee to gain their license and thereafter a biennial license fee of $365. Both fees increased to $450 this past July 1 -- the highest amount allowed by law. The fee increase will offset a projected $2.74 million deficit for the 2014-2015 budget year, while supporting the board's enforcement program.

Dr. Mina Paul, a Boston dentist who is president-elect of the American Association of Dental Boards, said dental boards are organized differently across the country and have different levels of authority depending on their structure. How boards operate and what they can do is all determined by each state's laws.

"The dental boards function to protect the safety of the public ... and I think they do the best they can, but remember they have to operate under state law," which defines their ability to do things like budget and add staff, Paul said.

Paul said more of the public needs to know the boards are there for their protection and to speak up about concerns, whether it's the standard of care, the cleanliness of a facility or the person delivering their dental care.

"People should be aware that the dental board is there for them, for the public," Paul said.

Fran Burton, the president of the state dental board, did not return calls requesting an interview for this article.

This article was originally written for the The Bakersfield Californian.