2012-532, Appeal of Dr. Kevin D. Boulard, D.M.D.

The petitioner, Dr. Kevin Boulard, D.M.D., appeals an order of

Dental Examiners. assistant attorney general, on the brief), for the New Hampshire Board of Michael A. Delaney, attorney general (Anthony I. Blenkinsop, senior

to press. Errors may be reported by E-mail at the following address: brief), for the petitioner.

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as conduct constituted “ignorance, incompetence, or a pattern of behavior

p. 2 which they were untrained to perform correctly.” The Board ruled that this

moderate sedation – unrestricted”; and (3) “assigning to assistants duties . . . medications and contained expired medications which are required for “maintaining an emergency medical kit that was missing certain required

he was authorized to perform moderate sedation – unrestricted”; (2)

professional misconduct by: (1) “failing to maintain an operable AED . . . while 21, the Board issued an order stating that the petitioner committed because it did not receive the Committee’s evaluation until May 17). On May

(the Board did not consider the results of the Committee’s investigation

On May 7, the Board met to deliberate the results of the April 2 hearing

emergencies. meet the necessary requirements. See N.H. Admin. Rules, Den 102.01(f)(2), dentists who have a permit to administer general anesthesia and/or sedation”

response [and] required coaching for appropriate response” during simulated

Committee is a standing committee established by the Board “to ensure that

his staff. The Committee also noted that the petitioner’s staff was “slow with

Hampshire Anesthesia and Sedation Evaluation Committee (Committee). The

required equipment, both of which were missing, and required certifications for upon the petitioner acquiring one required medication and one piece of investigation of the petitioner’s practice, this one conducted by the New moderate sedation – unrestricted permit. However, the grade was contingent On April 30, at the petitioner’s request, the Board commenced a second

suspension of the petitioner’s permit. See RSA 317-A:18-b (2005). On April 2,

permit. The Committee’s evaluation gave the petitioner a passing grade for his

moderate sedation – unrestricted permit.

cases involving moderate sedation” and ordered an emergency, temporary

Justice. Neither investigator was trained in sedation. Committee consisted of two licensed dentists, each of whom held a sedation investigators and an investigator from the New Hampshire Department of investigation were known to the petitioner several weeks in advance. The unannounced investigation of the petitioner’s practice, sending one of its own professional misconduct and, if so, whether to extend the suspension of his investigation, which was unannounced, the date and parameters of this second investigations. See N.H. Admin. Rules, Den 212.03. Unlike the first 304.02. The Board appoints the Committee to conduct formal and informal

that this conduct “involve[d] imminent danger to life, safety, and/or health in incomplete and contained expired medications. On March 16, the Board found defibrillator (AED) and maintained an emergency medical kit that was

handle a sedation emergency.” On March 8, 2012, the Board commenced an the Board held a hearing to determine whether the petitioner committed concerns about the petitioner’s practice, including that it “was not equipped to

that the petitioner failed to maintain an operable automated external

information from other practice issues currently being investigated by the moderate sedation is received and reviewed by the Board, including remain suspended until “all information related to the [petitioner’s] use of

inspection in detail.” As a result, the Board ordered that the petitioner’s permit

with three weeks to practice and knowing the date and content of the

emergency involving a sedated patient during the demonstration drill, even The Board also noted that “[the petitioner’s staff] seemed unprepared for an unrestricted moderate sedation, in violation of RSA 317-A:17, II (d) and (e).”

medications and adequately trained staff as required for the administration of

petitioner had committed professional misconduct by “fail[ing] to have permit. After considering the Committee’s evaluation, the Board found that the June 27 order, the Board upheld the indefinite suspension of the petitioner’s

sedation – unrestricted permit, see RSA 317-A:4(c) (2005), and may suspend or

incompetence, or a pattern of behavior inconsistent with the basic knowledge 304.02(i). Professional misconduct includes, in pertinent part, “[i]gnorance, the record so that the Board could consider the Committee’s evaluation. In a “professional misconduct,” see RSA 317-A:17, II, III; N.H. Admin. Rules, Den opportunity to be heard, it finds evidence that the permit holder engaged in revoke a permit when, after the permit holder is given notice and the

has authority to conduct disciplinary hearings for violations of a moderate (2007). Appeal of Beyer, 122 N.H. 934, 938 (1982). We defer to the Board’s health, safety, and welfare” with regards to dentistry. RSA 317-A:1 (2005). It The Board is responsible for ensuring “the protection of the public

150 N.H. 410, 411 (2003) (quotation omitted). evidence from which the [B]oard could conclude as it did.” Appeal of Huston, “This presumption may be overcome only by a showing that there was no lawful and reasonable.” RSA 541:13; Appeal of Trotzer, 143 N.H. 64, 67 (1998). The petitioner subsequently moved for reconsideration and reopening of N.H. 484, 490 (2009). The Board’s findings of fact shall be deemed “prima facie that its order was unjust or unreasonable. RSA 541:13; Appeal of Kelly, 158 information [submitted to the Board by the petitioner’s former employee].” matter of law, or if we are satisfied by a clear preponderance of the evidence findings of fact, and we will reverse its decision only if it is erroneous as a

Our standard of review for Board decisions is governed by RSA 541:13

(2007).

complete[d] its on-going investigation of other issues indicated in the

dentistry and who hold [a moderate sedation – unrestricted] permit.” See RSA inconsistent with the basic skills expected of persons licensed to practice

and personnel [was] received and reviewed by the Board” and “[t]he Board “[a]ll information relative to sedation regarding his facility, equipment, drugs 317-A:17, II(d). The Board indefinitely suspended the petitioner’s permit until under no obligation to adopt the Committee’s recommendations. See Appeal of p. 4 passing grade following its investigation, the Board, as the decision-maker, is professional misconduct. Even though the Committee awarded the petitioner a

reasonable basis for the Board to find that the petitioner committed

indefinite suspension of the petitioner’s permit, the record establishes that the

medication and adequately trained staff. These findings constitute a referenced the Committee’s findings that the petitioner failed to have a required properly credit” the Committee’s evaluation. In its June 27 order, the Board conscience and capable of reaching a just and fair result.” Appeal of Grimm, the second investigation, consisted of qualified investigators. In upholding the We first reject the petitioner’s argument that the Board “refused to unrestricted practice, it is uncontested that the Committee, which conducted investigation were unqualified to evaluate the petitioner’s moderate sedation –

him. See Dell, 140 N.H. at 497.

the Board serves in an adjudicatory capacity, it is presumed to be “of misconduct. We disagree. Assuming, without deciding, that the investigators who conducted the first to support the Board’s determination that he committed professional investigation were unqualified. See N.H. Admin. Rules, Den 304.02(g)(3). The petitioner next argues that the investigators who conducted the first

towards the petitioner, or unalterably prejudged the facts of the case against (emphasis added)); cf. Petition of Grimm, 138 N.H. 42, 54 (1993) (“[T]he board the Committee’s passing grade does not establish that it entertained ill-will 141 N.H. 719, 721 (1997) (quotations omitted). The Board’s decision to reject

by the board.” (citations omitted)); N.H. Admin. Rules, Den 212.04(c) (“[A]n the Committee’s evaluation constitutes evidence of bias. We disagree. When In a related argument, the petitioner contends that the Board’s reading of “unjust and unreasonable” because there is insufficient evidence in the record Serv. Co. of N.H., 124 N.H. 479, 484 (1984). The petitioner first argues that the Board’s suspension of his permit is consideration to all the evidence when making its findings.” Appeal of Public unpersuasive.”). There is no evidence that the Board did not “give proper dental hygiene,” RSA 317-A:17, II(e). may reject uncontradicted opinion testimony that its own expertise renders

whether further board action should be taken on the allegations in question.” investigator designated by the board shall . . . make a recommendation as to

conclusions are entitled to weight, they may be accepted, rejected, or modified Dell, 140 N.H. 484, 493 (1995) (“While [a hearing officer’s] findings and

RSA 317-A:17, II(d), or “[g]ross or repeated negligence in practicing dentistry or and skills expected of persons licensed to practice dentistry or dental hygiene,” by the Board.” We agree with the petitioner that this aspect of the Board’s

p. 5 be unreasonable or to constitute an abuse of discretion.” Appeal of Morgan,

reviewed “information from other practice issues currently being investigated

will set aside an administrative sanction only if it is so harsh or excessive as to

petitioner’s permit would not be reinstated until the Board had received and suspended until he meets the above conditions, the Board also ordered that the However, in addition to ordering that the petitioner’s permit remain

Finally, the petitioner argues the Board’s indefinite suspension of his

our judgment for that of the agency only in exceptional cases.” Id. After

(quotation omitted)). Therefore, we hold that the Board’s imposition of an indefinite suspension for Board’s determination that the petitioner violated RSA 317-A:17, II(d) and (e).

to decide without the aid of expert testimony. See Beyer, 122 N.H. at 939-40; sanctions are necessarily tailored to the facts of each case, we will substitute

the requirements for holding a moderate sedation – unrestricted permit. violations found by the Board and demonstrates that he is in compliance with petitioner to apply for reinstatement of his permit after he corrects the always necessary.” Beyer, 122 N.H. at 939-40; see RSA 317-A:2 (2005) (“[The As to this aspect of the Board’s June 27 order, we interpret it to permit the this misconduct was not so harsh or excessive as to be unreasonable. See id.

held that the jury may infer negligence without the aid of any expert.” reviewing the record, we conclude that the Committee’s findings support the

conduct was unprofessional.” Huston, 150 N.H. at 415; see RSA 541-A:33, VI has “expertise and specialized knowledge to evaluate whether [a party’s] trained staff – are not so complex as to be outside the competence of the Board 144 N.H. 44, 56 (1999) (quotation omitted). “Recognizing that appropriate

the competence of the board, and for this reason, expert testimony is not is limited to particular types of cases, the standard of ordinary care is within were trained in sedation. “Like other administrative bodies whose jurisdiction matter is regarded as within the common knowledge of laymen . . . it is often cf. Durocher v. Rochester Equine Clinic, 137 N.H. 532, 534 (1993) (“Where the

the applicable standard of care. Again, we disagree. An administrative board petitioner’s violations – failing to have a required medication and adequately dental hygienists, and one public member . . . .”). We conclude that the Board of Dental Examiners] consists of 9 members; including 6 dentists, 2

board relied exclusively upon the Committee’s findings, not the findings of the

establish the standard of ordinary care because not all of the Board members (2007). In this case, we disagree that expert testimony was required to

the petitioner’s conduct and that expert testimony was required to establish The petitioner further argues that the Board lacked expertise to evaluate

first investigators. p. 6 6 his permit. See State v. Berrocales, 141 N.H. 262, 264 (1996) (reciting our

because its orders failed to provide clear notice of what he must do to reinstate argument that the Board violated his constitutional right to due process In light of the above, we find it unnecessary to address the petitioner’s

Affirmed in part;

DALIANIS, C.J., and HICKS and BASSETT, JJ., concurred. health”). We therefore vacate this part of the Board’s order. sixty days without a hearing in cases involving “imminent danger to life or and vacated in part. RSA 317-A:18-b (providing that the Board may suspend a license for up to

necessary). long-standing policy to decide constitutional questions only when absolutely

investigations of the petitioner’s professional practice. See RSA 317-A:4, I(d). order cannot be upheld. The Board has the authority to conduct further

license after providing the licensee notice and the opportunity to be heard); of his permit. See RSA 317-A:17, II (providing that the Board may suspend a petitioner’s practice does not, without more, justify the continued suspension However, the mere fact that it is conducting other investigations of the