IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mark Allen Steinberg, D. D. S., : Petitioner : : v. : No. 164 C.D. 2015 : Submitted: June 19, 2015 Department of State, Bureau of : Professional and Occupational Affairs, : State Board of Dentistry, : Respondent : BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: July 30, 2015 Petitioner Mark Allen Steinberg, D.D.S. (Petitioner), petitions this Court for review of an order of the Department of State, Bureau of Professional and Occupational Affairs, State Board of Dentistry (Board). The Board issued a Final Adjudication and Order (Final Order), revoking Petitioner s license to practice dentistry. For the reasons set below, we affirm. On November 14, 2013, the Board issued an Order to Show Cause (OSC), alleging that Petitioner violated Sections 4.1(a)(2), (8), and (9) of the
Dental Law 1 and Sections 33.207, 33.208 of the State Board of Dentistry Regulations, 49 Pa. Code 33.207, 33.208. 2 (Certified Record (C.R.), Item No. 1.) The OSC alleged that Petitioner prescribed controlled and non-controlled substances to T.C. that were unrelated to dental pain, outside the scope of the dentist-patient relationship, and were undocumented/not recorded in the patient chart. (Id.) The OSC alleged that Petitioner engaged in a sexual relationship with T.C. while prescribing her drugs and that Petitioner knew T.C. had a drug addiction. (Id.) The OSC also alleges that Petitioner engaged in unprofessional conduct and committed gross negligence. (Id.) Petitioner filed an Answer and New Matter, and requested that the Board take into consideration mitigating 1 Act of May 1, 1933, P.L. 216, added by the Act of December 20, 1985, P.L. 513, as amended, 63 P.S. 123.1(a)(2), (8), (9). The pertinent parts of Section 4.1 of the Dental Law provide: (a) The board shall have authority, by majority action, to refuse, revoke or suspend the license of any dentist... for any or all of the following reasons: (2) Making misleading, deceptive, untrue or fraudulent representations..... (8) Engaging in unprofessional conduct. For the purposes of this clause (8), unprofessional conduct shall include any departure from, or failure to conform to, the standards of acceptable and prevailing dental or dental hygiene practice........ (9) Committing an act of gross negligence, malpractice or incompetence or repeated acts of negligence, malpractice or incompetence. 2 49 Pa. Code 33.207, 33.208. 2
factors in making the determination with regard to Petitioner s license. (C.R., Item No. 2.) On May 21, 2014, a hearing was held before a Hearing Examiner. (C.R., Item No. 10.) Petitioner was represented by counsel and, in addition to his own testimony, offered the testimony of William Cherry, D.M.D., and Richard Kingston, Jr., D.D.S. (Id.) The Board was represented by counsel and offered the expert testimony of Susan Calderbank, D.M.D. (Id.) The Hearing Examiner issued a Proposed Adjudication and Order (Proposed Order), suspending Petitioner s license to practice dentistry for three years. (C.R., Item No. 11.) The Board gave notice that it would be reviewing the Proposed Order and requested that both parties submit briefs. (C.R., Item No. 12.) The Board reviewed the Proposed Order and issued a Final Order on January 30, 2015, revoking Petitioner s license to practice dentistry. (C.R., Item No. 15.) In doing so, the Board incorporated all of the Hearing Examiner s findings of fact, conclusions of law, and discussions, with the exception of the last paragraph regarding the sanction. (Id. at 2.) The Board found that Petitioner employed T.C. as a dental assistant from May 2006 to March 2011 and provided dental treatment to T.C. from August 2006 to August 2011. (C.R., Item No. 11, at 5.) Petitioner was at the office after hours on December 5, 2008, when T.C. called crying about her family and her boyfriend. (Id. at 5-6.) Petitioner felt that something was wrong and drove to T.C. s address, where he found her unconscious and surrounded by empty pill bottles. (Id. at 6.) In late December or early January, T.C. told Petitioner that she had a drug problem. (Id.) Petitioner attempted to help T.C. with her drug problem by encouraging her to attend school, for which he paid. (Id. at 7.) Petitioner also, on numerous occasions, prescribed 3
T.C. drugs (controlled substances and non-controlled substances) unrelated to dental pain in an attempt to wean T.C. off of drugs. (Id.) Petitioner did not record the prescriptions on T.C. s patient chart nor did Petitioner keep a record of the amounts, directions given, or date of issuance of the drugs. (Id. at 8-9.) The Board also found that Petitioner engaged in a sexual relationship with T.C. from January 2010 to February 2011, during which T.C. attended rehab, also paid for by Petitioner. (Id. at 12.) Petitioner knew of T.C. s drug addiction and continued to prescribe her drugs. (Id. at 13.) On or about October 9, 2012, Petitioner was criminally charged by the Attorney General and entered into the Accelerated Rehabilitative Disposition Program (ARD). (C.R., Item No. 2.) After successfully completing ARD, the charges brought against Petitioner were dropped and his record was expunged. (Id.) On January 9, 2013, Petitioner voluntarily surrendered his Drug Enforcement Administration (DEA) license, thus making him unable to prescribe prescription drugs. (Id.) Petitioner acknowledges that his actions were improper and wrong, and he takes full responsibility for the incident with T.C. (C.R., Item Nos. 16-17.) Based on these findings, the Board concluded that Petitioner violated Sections 4.1(a)(2), (8), and (9) of the Dental Law and Sections 33.207 and 33.208 of the State Board of Dentistry Regulations. (Id. at 18-19.) In addition to incorporating the Hearing Examiner s discussions, the Board stated that it needs to send the appropriate message to [Petitioner] that the diversion of drugs and improper prescribing coupled with the inappropriate sexual relationship with a patient by members of the profession will not be tolerated. (C.R., Item No. 15, at 3.) The Board reasoned: [T]he diversion of drugs was more egregious and dangerous than most because [Petitioner] knew that the 4
patient had a severe drug addiction and chose to prescribe the controlled substances anyway. Revocation would be warranted on those facts alone but when you add that [Petitioner] was also engaging in an improper sexual relationship with the patient, revocation is the only sanction appropriate. (Id. at 3-4.) In response to the mitigation factors submitted by Petitioner, the Board found that the gravity of Petitioner s actions far outweighed any mitigating factors. (Id. at 4.) Petitioner petitioned this Court for review. 3 On appeal, 4 Petitioner argues that the Board abused its discretion when it concluded that the gravity of his actions outweighed any mitigating factors. 5 Petitioner also asserts that revocation of his license constituted an abuse of discretion because it is an unduly harsh and severe punishment. In support of his argument, Petitioner cites to Watkins v. State Board of Dentistry, 740 A.2d 760 (Pa. Cmwlth. 1999), Lajevic v. Department of State, 645 A.2d 348 (Pa. Cmwlth. 1994), and McGrath v. State Board of Dentistry, 632 A.2d 1027 (Pa. Cmwlth. 1993). Petitioner claims that the petitioners in those cases committed a greater number of violations or committed more egregious violations than Petitioner did, and the Board imposed lesser sanctions on the licensees in those 3 By order dated February 27, 2015, the Court denied an Application for Stay and/or Supersedeas filed by Petitioner. 4 Our review is limited to determining if the board has committed an error of law, violated constitutional rights, or failed to support any necessary finding of fact with substantial evidence. 2 Pa. C.S. 704; State Dental Council & Examining Bd. v. Friedman, 367 A.2d 363, 365 (Pa. Cmwlth. 1976). 5 Throughout his brief, Petitioner argues that substantial evidence does not exist to support the Board s sanctions. Petitioner, however, does not dispute the factual findings of the Board. Thus, we will only address Petitioner s claim that the Board abused its discretion in imposing an unduly harsh, restrictive and unwarranted punishment. (Petitioner s Br. at 8.) 5
cases. Petitioner finally argues that other sanctions authorized pursuant to the Law would sufficiently achieve the Board s goal of deterrence and protecting the public. It is well settled that our appellate review of a licensing board s decision is limited to whether the decision was made in accordance with the law, not whether it was reasonable. Slawek v. State Bd. of Med. Educ. & Licensure, 586 A.2d 362, 365 (Pa. 1991). Judicial discretion may not be substituted for administrative discretion. Blair v. Bureau of Prof l & Occupational Affairs, 72 A.3d 742, 752 (Pa. Cmwlth. 2013). Unless the board is accused of bad faith or fraud, the scope of appellate review of a licensing board s disciplinary sanction is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency s duties or functions. Slawek, 586 A.2d at 365 (quoting Blumenschein v. Pittsburgh Hous. Auth., 109 A.2d 331, 334-35 (Pa. 1954) ( It is true that the mere possession of discretionary power by an administrative body does not make it wholly immune from judicial review, but the scope of that review is limited to the determination of whether there has been a manifest and flagrant abuse of discretion or a purely arbitrary execution of the agency s duties or functions. ), appeal dismissed, 350 U.S. 806 (1955)). As the ultimate factfinder, the Board may accept or reject the testimony of any witness in whole or in part, and this Court is bound by the credibility determinations made by the Board. Barran v. State Bd. of Med., 670 A.2d 765, 768 (Pa. Cmwlth.), appeal denied, 679 A.2d 230 (Pa. 1996). When reviewing a decision by the Board, this Court may not reweigh the evidence presented or judge the credibility of witnesses. Kundrat v. State Dental Council & 6
Examining Bd., 447 A.2d 355, 359 (Pa. Cmwlth. 1982). The sanctions which the Board imposes depend upon the facts of each individual case. Therefore, prior cases dealing with misconduct of a different nature and/or license revocations under different statutes are irrelevant. Vogelman v. State Bd. of Funeral Dirs., 550 A.2d 1367, 1371 (Pa. Cmwlth. 1988). It is not an abuse of discretion, however, for the Board to impose different sanctions for the same violation when differing circumstances exist. Goldberg v. State Bd. of Accountancy, 833 A.2d 815, 818 (Pa. Cmwlth. 2003). With that in mind, Petitioner asks that we review the severity of the violations involved in the cases cited above and conclude that the Board abused its discretion, because, he contends, the violations in those cases were more severe than his violation, yet the Board did not impose the sanction of revocation in those cases. This Court will not look at cases involving different types of misconduct and compare the severity of each licensee s conduct and the sanction imposed to determine whether the Board abused its discretion in imposing a sanction in another case. In other words, in cases of differing conduct and differing circumstances, this Court will not weigh and compare the severity of the conduct with the severity of the sanction when reviewing the Board s order. It is well within the Board s discretion to determine the severity of each case and to impose the appropriate sanction. Here, the case at hand is clearly distinguishable from the cases cited above. 6 Moreover, Petitioner agrees that the cases are distinguishable. Because 6 In Watkins, Dr. Watkins engaged in unprofessional conduct which resulted in the death of a three year old boy as the result of the use of general anesthesia. In Lajevic, Dr. LaJevic engaged in unprofessional conduct when he failed to renew his license, prescribed drugs for his (Footnote continued on next page ) 7
the underlying circumstances surrounding the unprofessional conduct committed by Petitioner are distinctly different from each of the cases cited above, the cases are not relevant to the matter now before this Court. Section 4.1(a) of the Dental Law specifically provides that the Board shall have the authority to refuse, revoke or suspend the license of any dentist. Thus, the Board has the power to revoke Petitioner s license. The Board reviewed the record in its entirety, and based its decision on the totality of the circumstances, determining that revocation is the appropriate sanction. (C.R., Item No. 15, at 3.) The Board also viewed the mitigating factors, and it concluded that the violations outweighed the factors presented. It is clear to this Court that the Board did not abuse its discretion in ordering Petitioner s license to be revoked. We may not substitute a lesser sanction when there has not been an abuse of discretion by the Board. Accordingly, the order of the Board is affirmed. P. KEVIN BROBSON, Judge (continued ) own personal use, failed to record prescriptions on patients charts, failed to conform to the accepted standards of dental practice, and committed gross negligence towards his patients. In McGrath, Dr. McGrath engaged in unprofessional conduct when he was found guilty of Medicaid fraud. In this case, Petitioner prescribed drugs to a person who he knew had a drug addiction and engaged in a sexual relationship with the patient while prescribing her the drugs. 8
IN THE COMMONWEALTH COURT OF PENNSYLVANIA Mark Allen Steinberg, D. D. S., : Petitioner : : v. : No. 164 C.D. 2015 : Department of State, Bureau of : Professional and Occupational Affairs, : State Board of Dentistry, : Respondent : O R D E R AND NOW, this 30th day of July, 2015, the order of the Department of State, Bureau of Professional and Occupational Affairs, State Board of Dentistry, is hereby AFFIRMED. P. KEVIN BROBSON, Judge