In July 2004, the Arizona State Board of Dental Examiners charged Terry J. Lee with unprofessional conduct by failing to maintain adequate records. The complaint was filed after an audit of his charts found that (a) he did not record evaluations for many patients for whom he provided periodontal (gum) treatment; (b) he administered intravenous vitamin C infusions without documenting any diagnosis or health history justifying their use; and (c) he made notions of “detox” without sufficiently identifying what it is or why he believed it was necessary. In February 2005, the board upheld the complaint, assessed a $4,000 penalty, and suspended his dental license for 45 days. Lee appealed this order, but the appeals court upheld it. The audits were part of a process that began in 1999 when the board placed him on 5 years’ probation with quarterly audits of diagnosis, treatment, planning skills, and recordkeeping. In 2006, the board concluded that Lee had improperly treated a patient and ordered him to undergo six hours of continiung education in the use of entl materials. In 2008, the board fined him $1,000 for failing to comply with the 2006 order.
BEFORE THE BOARD OF DENTAL EXAMINERS
OF THE STATE OF ARIZONA
|IN THE MATTER OF
Terry J. Lee, DDS
Holder of License Number D 1555
CASE NUMBER 240108
On February 4, 2005, this above captioned matter came before the Arizona State Board of Dental Examiners for oral argument and consideration of the Recommended Decision and Order presented by the Administrative Law Judge/Arizona State Office of Administrative Hearings. Terry J. Lee, DDS was present and was represented by Lori A. Curtis Esq. The State of Arizona was represented by Assistant Attorney General Mary DeLaat Williams. Assistant Attorney General Christine Cassetta from the Solicitor General’s Office was present to advise the Board. The Board, having considered the entire Administrative Record in this matter, hereby adopts the ALJ’s Findings of Fact, with one amendment to finding of fact no. 27 to change the word “difference” to “different,” adopts the Conclusions of Law as stated and issues the following Order:
FINDINGS OF FACT
1. The Arizona State Board of Dental Examiners (“Board”) has the authority to regulate and control the practice of dentistry in the State of Arizona.
2. The Board issues only one type of dental license, and all dentists are subject to the provisions of the Dental Practice Act, A.R.S. 32-1201 et seq
3. Respondent Terry J. Lee, D.D.S. is the holder of License No. D 1555 issued by the Board in 1969.
4. Respondent engages in the practice of “holistic” or “biologic” dentistry.
5. On February 24, 1999, the Board issued an Order to Respondent in consolidated Case Nos. 95083, 95084, 95135, 95178, 95312, 96024, 96054, 96175 and 97341 (“1999 Board Order”).
6. The 1999 Board Order contains a finding that Respondent engaged in unprofessional conduct by repeatedly failing to maintain adequate treatment records for his patients as required by A.R.S. §§ 32-1264 and 1201(18)(y). Specifically, Respondent repeatedly failed to sufficiently document periodontal charting, clinical examination notes, written diagnosis and/or written treatment plans.
7. The 1999 Board Order censured Respondent and placed him on probation for five (5) years, the terms of which required him to take forty-eight (48) hours of continuing education and subjected him to peer review and quarterly audits of his diagnostic treatment planning and record keeping methods. Included in the ordered continuing education were twelve (12) hours in record keeping and twelve (12) hours in diagnosis and treatment planning. Respondent timely completed the ordered continuing education.
8. The 1999 Board Order did not prohibit Respondent from administering holistic treatments.
9. The first audit of Respondent’s records found, among other things, that he continued to maintain inadequate treatment records. As a result of the audit, the Board opened Case Nos. 200235 and 220306 against Respondent that included allegations of noncompliance with the 1999 Board Order and failure to maintain adequate records.
10. On or about December 9, 2002, Respondent and the Board entered into a Consent Agreement and Order (“2002 Consent Agreement”) to resolve Case Nos. 200235 and 220366. The 2002 Consent Agreement contains a Conclusion of Law that Respondent’s continued failure to record a clinically acceptable justification for treatment in patients’ records and to properly chart patients periodontal condition constituted unprofessional conduct.
11. The pertinent terms of the 2002 Consent Agreement state that:
a. Dr. Lee shall cease performing cavitational surgeries on any of his patients.
b. Dr. Lee shall cease using non-diagnostic devices, i.e., the computron, the amalgameter, and/or applied kinesiology, as his sole basis for extracting root canal-treated teeth for extracting teeth that require endontic treatment, and for diagnosing NICO. Additionally, Dr. Lee’s treatment records shall contain a recognizable, legitimate diagnostic method, within the standard of care that supports his diagnosis and treatment of a patient.
c. Dr. Lee’s treatment records shall comply with A.R.S. §§ 32-1264 and shall contain clinical and treatment information that is within the standard of care.
12. The 2002 Consent Agreement placed Respondent’s license on probation for three (3) years, ordered him to take eight (8) hours of continuing education in risk management and subjected him to semi-annual audits of his patient records.
13. Respondent agreed that in the event he violated any of the terms of the 2002 Consent Agreement the Board could suspend or revoke his license after hearing.
14. Pursuant to the 2002 Consent Agreement an audit of Respondent’s patient records was conducted in October 2003 by Dr. William Haggberg, a board approved auditor.
15. Dr. Haggberg’s audit of approximately 50 of Respondent’s patient records resulted in his making serious allegations of non-compliance and specifically alleged that Respondent had violated the 2002 Consent Agreement by performing cavitational surgery, extracting asymptomatic endontically treated teeth, and using the computrom and amalgameter as his sole basis for diagnosis.
16. The Board reviewed Dr. Haggberg’s audit results and discovered discrepancies. The Board directed Dr. Sam Palmer, its Chief Investigator, to review the audited records and Dr. Haggberg’s findings and present his findings to it.
17. Based upon Dr. Palmer’s review, the audit resulted in the following findings: some of Respondent’s records did not contain periodontal charting; some of the records contained undiagnostic radiographs; and for those patients to whom Respondent gave “detox supplements” and IV-Vitamin C (“IV-C”), the records contained no diagnosis, rational, or scientific basis as to why they were given.
18. Dr. Palmer determined that Respondent has not performed cavitational surgeries since the 2002 Consent Agreement became effective.
19. Dr. Palmer discovered that Respondent had not used holistic diagnostic techniques as the sole basis for diagnosis and treatment since the 2002 Consent Agreement became effective.
20. Based on the audit findings, the Board opened an investigation against Respondent for violating the 2002 Consent Agreement and forwarded the case to formal hearing based on his record keeping deficiencies.
21. The present Complaint alleges Respondent’s record deficiencies in four areas: insufficient periodontal charting; administration of IV-C without a documented diagnosis or health history notation justifying its use; failing to sufficiently identify a “detox” substance or explain its necessity; and inadequate and/or undiagnostic radiographs.
22. Dr. Palmer testified that the standards for record keeping are the same for all dentists; there are no different standards for holistic dentists. Respondent presented no evidence disputing that testimony.
23. Dr. Palmer testified regarding the importance of periodontal charting. Periodontal charting consists of doing six-point probings on the teeth present in the patient’s mouth to determine the periodontal health and depth of the pockets surrounding the teeth. Dentists are required to do periodontal assessment and charting should be done during a patient’s initial examination and at least prior to any treatment plan being formulated. Dr. Palmer testified that “a reasonable and prudent dentist does the periodontal [charting] and the x-rays before they do the diagnosis and treatment plan.” Respondent presented no independent objective evidence disputing Dr. Palmer’s testimony.
24. Both Dr. Palmer and Respondent testified that a patient’s periodontal condition is the foundation of the mouth.
25. Dentists are required to maintain and record periodontal charting in patient records under A.R.S. §§ 32-1264.
26. When Dr. Palmer reviewed Respondent’s treatment records that were subject to the 2003 audit, he found a lack of periodontal charting, which Respondent admitted to in his answer to the Complaint and Notice of Hearing.
27. Most patients come to see Respondent knowing what procedures they want done. Many times, patients come in to “shop”; they want Respondent to make an initial estimate of how much it will cost for him to completely replace their current dental work. The cost to have this done is sometimes quite cost prohibitive and is quite different than having a filling or crown done once a year.
28. A patient presenting to Respondent undergoes a time consuming screening, including an initial perio screening and x-rays, which Respondent then reviews and uses to develop an initial treatment plan. This screening process, entitled a “full exam” by Respondent, records what is in the patient’s mouth and what the patient may need to have done.
29. Each patient is advised that this treatment is contingent upon their general periodontal health. And, each treatment plan given to the patient makes clear that the first step in treatment is a cleaning and complete periodontal charting.
30. Respondent’s patient records for M.D. do not contain periodontal charting after October 1995. Respondent saw M.D. in September 2002, and had a periodontal screening but no periodontal chart.
31. Dr. Palmer credibly testified that a periodontal screening is not the equivalent of a periodontal chart.
32. In May 2003, Respondent filled seven of M.D.’s teeth and extracted tooth No. 28. This treatment was done after Respondent entered into the 2002 Consent Agreement. Respondent should not have treated M.D. in May 2003 without having done a periodontal chart. Respondent admitted to not doing periodontal charting on M.D. after October 1995.
33. Respondent’s treatment records for J.H. do not contain any periodontal charting done after May 2000.
34. J.H. was seeing another dentist, Dr. Kem, during the time she was also being treated by Respondent. J.H. received a cleaning from Dr. Kem prior to being treated by Respondent on June 2003. Although Respondent received J.H.’s treatment records from Dr. Kem prior to June 11, 2003, Dr. Kem’s records did not contain an updated periodontal chart, and Respondent did not do a periodontal assessment and chart prior to treating J.H. on June 11, 2003, which was subsequent to the 2002 Consent Agreement.
35. Dr. Palmer credibly testified that a dentist has an independent duty to do a periodontal assessment, even if a patient is under the care of a specialist.
36. Respondent’s treatment of J.H. on June 11, 2003, included a crown for tooth no. 15. According to the periodontal chart Respondent did for J.H. in April 2000, tooth no. 15 had some periodontal concerns which Dr. Palmer opined Respondent should have reevaluated prior to doing the treatment. Respondent admitted to not assessing J.H.’s periodontal conditions prior to treating J.H.’s tooth no. 15.
37. Dr. Palmer testified that J.H.’s treatment records do not comply with the 2002 Consent Agreement or the record keeping requirements of the Dental Practice Act. Respondent offered no independent, objective disputing Dr. Palmer’s opinion.
38. M.J. was initially seen in Respondent’s office on May 14, 2003. Respondent’s treatment records indicate that Respondent did an examination of M.J. on that day but the records do not contain a corresponding periodontal chart. Although the records contain general notes regarding M.J.’s periodontal conditions, that is insufficient to give an assessment of the patient’s periodontal condition.
39. Respondent treated M.J. on May 28, 2003, subsequent to entering the 2002 Consent Agreement, without doing a periodontal chart. Respondent did not do a periodontal chart until approximately one year later when it came to his attention from the Board’s audit that M.J.’s file did not have a periodontal chart.
40. Dr. Palmer testified that Respondent’s treatment records for M.J. do not comply with the 2002 Consent Agreement or the Dental Practice Act. Respondent offered no independent, objective evidence disputing Dr. Palmer’s opinion.
41. M.K. was initially seen by Respondent on June 12, 2003. According to M.K.’s treatment records, Respondent did an examination with charting, took radiographs and photographs, and did amalgameter and computron testing. Respondent did not do periodontal charting.
42. Respondent testified that when new patients come to him he gives them a full examination, which includes recording everything that is in the patient’s mouth. Dr. Palmer testified that a new patient examination would include periodontal charting.
43. On June 12, 2003, Respondent prepared a treatment plan for M.K., which included treatment costing in excess of $10,000. Respondent formulated the treatment plan without first doing a periodontal assessment and charting. Dr. Palmer testified that Respondent had the duty to do a periodontal chart prior to doing the treatment plan.
44. Although Respondent testified that a periodontal assessment is a diagnostic tool that provides important information and assists in determining diagnosis and treatment, he did not do one on M.K. prior to formulating the treatment plan.
45. Moreover, Respondent testified that although he spends approximately two-and-a-half hours on radiographs, photographs, amalgameter, computron, checking meridians and applied kinesiology, he does not take time to do a periodontal assessment and charting prior to doing treatment plan. Respondent testified that sometimes patients do not want to spend the extra time for a periodontal assessment. Nowhere is that documented in any of the treatment records reviewed during the audit.
46. Respondent testified that the reason he did not do a periodontal chart for M.K. is because the patient never returned, and that if he had returned, the periodontal charting would have been done at that time. However, the patient did return on June 19, 2003, for a consultation with Respondent’s staff. No periodontal charting was done.
47. Dr. Palmer testified that Respondent’s duty to do a periodontal chart is not excused by the patient’s failure to return for treatment. Respondent should have done the periodontal chart prior to doing the treatment plan. Respondent offered no independent, objective evidence disputing this testimony.
48. Dr. Palmer also testified that M.K.’s records do not comply with the 2002 Consent Agreement or the Dental Practice Act. Respondent offered no credible evidence disputing this.
49. T.M. initially saw Respondent on May 27, 2003. On May 29, 2003, Respondent did a new patient full examination, which consisted of taking radiographs, photographs, examination with charting, amalgameter, computron and checking meridians. Respondent did not do periodontal charting.
50. Respondent formulated a treatment plan for T.M. on May 29, 2003, without doing periodontal charting. Again, Respondent’s testimony was that the charting was not done because T.M. did not return for a periodontal assessment.
51. Dr. Palmer testified that Respondent should have done the periodontal assessment and charting for T.M. prior to his formulation of the treatment plan. Respondent offered no credible evidence to the contrary.
52. Dr. Palmer testified that T.M.’s treatment records did not comply with the 2002 Consent Agreement or the Dental Practice Act. Respondent offered no independent, objective evidence disputing this testimony.
53. Respondent saw patient S.R.M. initially on May 1, 2003. On May 14, 2003, he did a clinical examination, which did not include periodontal charting. Respondent also formulated a treatment plan on May 14, 2003, without first doing a periodontal chart.
54. S.R.M. returned to see Respondent on May 20, 2003, May 28, 2003, June 11, 2003 and November 4, 2003. At no time did Respondent do periodontal charting.
55. Dr. Palmer testified that Respondent’s treatment records for S.R.M. do not comply with the 2002 Consent Agreement or the Dental Practice Act. Respondent offered no independent, objective evidence disputing this testimony.
56. Respondent initially saw patient M.N. on April 30, 2003, when she came in with a broken crown on tooth no. 14 and an abscessed tooth. Respondent extracted M.N.’s tooth no. 14. Respondent did not do a periodontal assessment of tooth no. 14 prior to the extraction. Dr. Palmer testified that Respondent should have done such an assessment prior to the extraction.
57. On May 13, 2003, M.N. returned for an examination, which did not include periodontal charting. On May 13, 2003, Respondent formulated a treatment plan for M.N., which included crowns, bridges and partials, for a cost in excess of $10,000. Respondent failed to do a periodontal chart prior to formulating the treatment plan. Dr. Palmer testified that given the types of restorations Respondent proposed, Respondent should have first determined the periodontal status of M.N.’s teeth prior to doing the treatment plan.
58. Respondent testified that M.N. never returned for a periodontal assessment, but Dr. Palmer testified that factor did not excuse Respondent’s duty to do such an assessment prior to formulating a treatment plan.
59. Dr. Palmer testified that Respondent’s treatment records for M.N. do not comply with the 2002 Consent Agreement or the Dental Practice Act. Respondent offered no independent, objective evidence disputing this testimony.
60. Exhibit 21, submitted by Respondent, is a checklist Respondent began using in his office to ensure that patient records contain periodontal charting. Respondent did not develop the checklist until after the October 2003 audit when he testified that there was a problem with his periodontal records.
61. Dr. Palmer testified regarding the importance of a dentist recording adequate documentation in a patient’s record. Treatment records should be complete, consistent and clear, not just to the dentist making the record but to anybody that may look at them. A patient’s record is part of the patient’s continuity of care and should contain all information regarding diagnosis, treatment planning, treatment, and the rationale behind the treatment. The requirements for adequate patient records are similar for dentist practicing traditional dentistry and those practicing holistic dentistry.
62. Respondent administered IV-C to the following patients: M.D., L.E., B.G., P.G., L.G., and D.L.J.
63. Dr. Palmer testified that he reviewed the above-referenced patient records and found each one lacking in adequate documentation explaining the reason or rationale explaining why the IV-C was administered to those patients.
64. Respondent testified that he administers IV-C as part of the treatment when he removes amalgam fillings from a patient’s mouth to boost the patient’s immune system. Respondent further testified that he does not document the rationale for administering IV-C because it is a “protocol” of the American Academy of Biological Dentistry. Respondent also testified that a dentist who is not familiar with holistic or biological dentistry would not understand why IV-C was being administered as part of the patient’s treatment.
65. In the 1999 Board Order, Respondent’s use of IV-C was specifically addressed in Finding No. 118, which states, inter alia:
Whether these substances have any legitimate use or not, Respondent failed to adequately document in his records his administering of them, and that omission is sub-standard of care in the area of record keeping.
66. After the 1999 Board Order was entered, Respondent changed his documentation practices and documented his administration of IV-C, including dosage, dilution percentages, and administration site.
67. Since the 1999 Board Order, other audits have been conducted by Board staff. However, since he changed documentation methods, no one has said Respondent’s documentation of his administration of IV-C was a problem until this last audit. Respondent believed that he was documenting his administration of IV-C correctly.
68. At the hearing, Dr. Palmer agreed it was reasonable for Respondent to have looked to the Board Order in order to determine what was necessary for compliance. Dr. Palmer additionally agreed that under the circumstances, Respondent had a right to believe that his documentation was in accordance with the standard of care.
69. Notwithstanding the foregoing, it is determined that Respondent’s documentation of his administration of IV-C and the rationale for the treatment falls below the standard of care because, as Respondent admitted in his testimony, a dentist who is not familiar with holistic or biological dentistry would not understand why IV-C was being administered as part of the patient’s treatment. Such records need to be clear to any dentist reviewing the patient records.
70. For the following patients, Respondent’s treatment records indicate detox supplements were provided as part of their treatment: J.A., J.B., M.D., L.E. and S.R.M.
71. Dr. Palmer testified that he reviewed the treatment records for the patients and found them lacking any rationale or basis for giving the patients detox supplements. There is no way to look at the records and determine the reason they were provided to the patients.
72. Respondent provides detox supplements to his patients. These supplements are over-the-counter, egg-based dietary supplement called Immune 26. They are not regulated or controlled by the FDA and can be purchased in any health food store or off the Internet.
73. Dr. Palmer did not know what the detox supplements were. He claimed he has “never seen detox in any of [his] experience as a Dental Board investigator.”
74. Respondent testified that records incorrectly identify the supplements as “detox.” They are not detoxifying supplements or agents. Respondent admitted that someone unfamiliar with holistic dentistry would not understand why he gives his patients detox supplement.
75. With respect to Respondent’s insufficient documentation of IV-C and detox supplements, it is determined that Respondent was not in compliance with the 2002 Consent Agreement, specifically paragraph No. 7 which requires that Respondent’s treatment records shall comply with A.R.S. §§ 32-1264 and shall contain clinical and treatment information that is within the standard of care.
76. E.A. and J.B. are patients who brought x-rays with them, which were then returned to the respective patient. Respondent admits that he should have made copies of them for his records. Respondent’s treatment records for these two patients contained inadequate radiographs that were not in compliance with the 2002 Consent Agreement or the Dental Practice Act.
77. At the hearing, it was apparent that the allegation for one record, L.S.B., was due solely to the poor quality of the radiograph provided to Dr. Palmer. The actual radiograph in Respondent’s file was clearly of diagnostic quality, and Dr. Palmer admitted as such at the hearing after reviewing the actual radiograph.
78. For patient M.N., Dr. Palmer testified that Respondent’s treatment records contained only an undiagnosis panolipse that was insufficient to support Respondent’s diagnosis of an abscessed tooth. It is determined that Respondent should have taken a periapical x-ray prior to doing treatment.
79. There is credible evidence that Respondent’s treatment records have improved since the 1999 Board Order.
CONCLUSIONS OF LAW
1. The Board has jurisdiction over the Respondent and the subject matter in this case.
2. Pursuant to A.R.S. §§ 32-1092.07(G)(2), the Board has the burden of proof in this matter. Pursuant to A.A.C. R2-10-119(A), the standard of proof is a preponderance of the evidence.
3. The conduct and circumstances described in the above Findings of Fact constitute unprofessional conduct as defined in A.R.S. §§ 32-1201(18)(w) [failure to comply with a Board Order], and is subject to discipline pursuant to A.R.S. §§ 32-1263(I) and 1263.01(C). Respondent’s treatment records do not include a recognizable diagnosis or clinical and treatment information supporting his treatment and/or fail to include the information required by A.R.S. §§ 32-1264(A), in violation of the 2002 Consent Agreement.
4. Respondent’s treatment records, described in the above Findings of Fact, fail to include the information required by A.R.S. §§ 32-1264, and Respondent’s failure to maintain adequate treatment records constitutes unprofessional conduct as defined in A.R.S. §§ 32-1201(18)(t) and (y) and is grounds for discipline under A.R.S. §§ 32-1263(1) and (4).
5. As a result of Respondent’s above violations, disciplinary action may be imposed upon him pursuant to A.R.S. §§ 32-1263.01.
6. Respondent’s failure of comply with the 2002 Consent Agreement is cause for suspension or revocation of his dental license. A.R.S. §§ 32-1263.01(C)
It is hereby ORDERED that license number D1555, issued by the Arizona State Board of Dental Examiners to Respondent, Terry J. Lee, D.D.S., is SUSPENDED for a period of forty five (45) days, commencing on THE EFFECTIVE DATE OF THIS ORDER.
It is further ORDERED that Dr. Lee post a notice of suspension at his place of business for sixty (60) days pursuant to A.R.S. § 32-1263.01(F). The posting of the notice of suspension shall run concurrent with the forty five (45) days of his license suspension.
In addition, an ADMINISTRATIVE PENALTY is imposed in the amount of $4,000.00 payable by certified check furnished to the Board office within 30 (thirty) days OF THE EFFECTIVE DATE OF THIS ORDER.
A licensee has the right to PETITION FOR REHEARING or REVIEW of the Order pursuant to A.R.S. § 32-1263.02(E). According to A.R.S. § 41-1092.09, as amended, the PETITION must be filed with the Board’s Executive Director within thirty (30) days after personal service of this Order or within thirty-five (35) days from the date of the mailing if the Order was served by Certified Mail. Pursuant to A.A.C. R4-11-1701(C), the PETITION must set forth legally sufficient reasons for granting the rehearing or review. The filing of a PETITION FOR REHEARING or REVIEW is required to preserve any rights of appeal to the Superior Court that the licensee may wish to pursue.
THIS ORDER SHALL BE EFFECTIVE and IN FORCE UPON THE EXPIRATION OF THE AFOREMENTIONED TIME PERIOD FOR FILING A MOTION FOR REHEARING OR REVIEW WITH THE BOARD. However, the timely filing of a motion for rehearing or review shall stay the enforcement of the Board’s Order unless, pursuant to A.A.C. R4-11-1701(F), the Board has expressly found good cause to believe that the Order shall be effective immediately upon issuance and has so stated in this Order.
ISSUED this ______ day of February 2005 at Phoenix, Arizona.
THE BOARD OF DENTAL EXAMINERS
OF THE STATE OF ARIZONA
Julie N. Chapko
Pamela J. Paschal
A copy of the foregoing mailed by CERTIFIED MAIL this ________ day of February 2005 to:
Dr. Terry J. Lee
4210 N. 32nd St.
Phoenix, Arizona 85018
Article No. 7004 1160 0005 5284 3967
A copy mailed by US MAIL to:
Gregory L. Miles, Esq.
Lori A. Curtis, Esq.
Davis Miles, PLLC
1550 E. McKellips Rd., #101
Mesa, Arizona 85203
Christine Cassetta, Asst. Atty. General
9545 E. Doubletree Ranch Rd.
Scottsdale, Arizona 85258
A copy HAND-DELIVERED to:
Office of Administrative Hearings
Attn: ALJ Brian Tully
1400 W. Washington, Ste. 101
Phoenix, Arizona 85007