May-June 2014
Volume 93 - Number 3

Find Your Way by the Star of the North

Development of a National TMJ Implant Registry and Repository - NICDR's TIRR

The Thought That Counts

Golden: Recognizing the MDA's 25-Year Members and Retirees

















Practice Management


Do I Need a Lawyer?


Todd P. Zettler, J.D.*



Stamped “CONFIDENTIAL” in red ink, the envelope’s return address is State of Minnesota Board of Dentistry.  With curiosity (if you have never seen this before) or with dread (if you have), you open the envelope. The letter informs you that a complaint has been filed against you. You have 14 days to respond. As your heart pounds, you think: Do I need a lawyer?

First, a confession: I am a lawyer. But I am not currently in private practice, so there is no hidden agenda. It is simply that, in my ten years of experience, I have found that dentists are very reluctant to defend themselves. The Board itself explains that it is “rare” for a dentist to contest the Board’s proposed resolution to a complaint. Initially, I found this very odd. The cost of defense seems small compared to the risk of things not going well before the Board of Dentistry. And things do not always go well before the Board.

You Pay Double

In one respect, however, it is not surprising that dentists challenge so few proposed resolutions. In fact, the Minnesota Supreme Court predicted exactly this result. Dentistry is unique in that, if the Board wins, it can require you to pay the Board’s costs and attorney’s fees as well as your own. And this could be a significant sum. Consider Dr. Joseph Wang, who rejected the Board’s proposed resolution and proceeded to a contested hearing. After he lost, the Board offered to waive its claim for $35,000 in “costs” (which included fees for 583.5 hours in Attorney General investigator and attorney time), but only if Dr. Wang accepted the proposed resolution, and only if he agreed not to appeal. Dr. Wang refused, and promptly lost again at the Court of Appeals. Finally, he appealed to the Minnesota Supreme Court, where he won. The Supreme Court explained in part that the Board had no basis to collect such investigator and attorney’s fees.

Unfortunately for dentists, the statute defining “costs” has since been amended and now explicitly includes these items. This is a significant departure from the American standard, where each party traditionally pays its own attorney’s fees. Medicine, for example, does not have this fee shifting provision; law does not have this fee shifting provision; and dentistry did not used to have this fee shifting provision.

In Dr. Wang’s case, the Supreme Court recognized that imposing large costs and expenses on dentists “both chills the accused from defending against the charges and provides an incentive for the Board to find against licensees in order to pass along the Board’s expenses.” Although the Supreme Court cautioned that such a cost-shifting scheme “raises due process concerns”, the amended statute has never been challenged in Minnesota’s appellate courts. But regardless of whether the cost-shifting statute is constitutional or not, a dentist’s reluctance to challenge the Board is understandable when faced with the prospect of having to
pay double.

I Didn’t Do Anything Wrong

Complaints are not always correct. So even if you did not do anything wrong, you may have a complaint filed against you. The Board will then request your written response to the complaint. Should you consult a lawyer if you did not do anything wrong?

Yes. Even if you did not do anything wrong, you should consult with a lawyer. The power of the Board to investigate is very broad. Consider how unusual it would be for a dental office to have no discoverable violations — not even in patient charting. So even if the initial complaint is without merit, the Board could discover other violations while investigating the first violation. And if you try limiting the scope of the Board’s investigation, you inevitably look “guilty”. A lawyer, however, is simply doing his or her job.

Also remember that the Board never truly dismisses a complaint. Instead, the Board merely closes its file. In fact, each closed file concludes with the warning that “should the Board receive future complaints, the Complaint Committee may choose to reopen this matter.” So if a new complaint is subsequently filed against you, the Board will review all previous complaints filed against you as well. It therefore makes sense to treat every complaint as if your license depended upon it — because someday it could.

I Just Made a Mistake

Everybody makes mistakes, and you are no exception. Should you consult with a lawyer if you simply made a mistake? Can’t you just explain your mistake to the Board?

In this regard it is important to remember that the Board does not represent your best interests. In fact, the Board’s mission is to protect the public (from you). To accomplish this, lawyers and investigators from the Minnesota Attorney General’s Office represent the Board. In addition, two members of the Board are lawyers themselves. As a general rule, if a lawyer represents your opponent, a lawyer should probably represent you as well.

There are two important points to remember here. First, be honest. The punishment for covering up a mistake is almost always worse than the original mistake itself (and usually easier to prove). Take, for example, Martha Stewart or Scooter Libby (before the President intervened). The Board can also take separate action against your license for being dishonest. Second, cooperate with the Board — do not simply ignore them and hope they will go away (they will not). Again, the Board can take separate action against your license for failing to cooperate. But cooperation is not the same as capitulation. Good faith challenges to the Board are not considered a failure to cooperate.

Finally, a lawyer’s job is often to ensure that the “punishment” fits the “crime”. In other words, a lawyer can help ensure that the remedy fashioned by the Board is appropriate to the mistake.

I’m in Trouble

If you are accused of doing something quite wrong, then in addition to the civil ramifications of losing your license to practice dentistry, you may also be facing criminal charges. Under these circumstances, you may need two lawyers — one for the civil and one for the criminal case against you. And this is not the place to cut corners and hire your real-estate-lawyer neighbor. Make sure the lawyer you hire is experienced in civil proceedings before the Board of Dentistry and criminal defense.

No thanks -- I’m Going it Alone

If you decide to represent yourself anyways, here are a few final thoughts.

In every communication with the Board, assume everything you say can and will be used against you.

Be responsive, but do not volunteer information.

Never respond late. Do not give the Board any additional reason to pursue a complaint against you.

Assume the Board is your opponent with interests hostile to yours. Better to be cautious than careless.

If you fail to reach an agreement with the Board, reconsider hiring a lawyer before the contested hearing. Once the facts are established at trial, they cannot be changed on appeal.

A complaint filed against you with the Minnesota Board of Dentistry is not necessarily a catastrophic career-ending event. But you should take every complaint seriously – even a frivolous one. The Board serves an important function, but the Board does not represent your interests. Only you can do that. And if the state can prove an innocent person guilty of a crime beyond a reasonable doubt and imprison him or her for years, then the state can certainly mistakenly take civil action against your license to practice dentistry, where the burden of proof is lower and the appellate review more deferential. So should you retain a lawyer to represent yourself against the state?
It seems like a good idea.

 

*Mr. Zettler is a practicing Minnesota lawyer experienced in both criminal and civil litigation. He lives in Minneapolis, Minnesota. E-mail is soshgsp@aol.com.





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