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
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
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
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
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.
Zettler is a practicing Minnesota
lawyer experienced in both criminal and civil litigation. He lives in Minneapolis, Minnesota.
E-mail is firstname.lastname@example.org.