Bassett v. State Board of Dental Examiners

727 P.2d 864, 1986 Colo. App. LEXIS 1077
CourtColorado Court of Appeals
DecidedSeptember 4, 1986
DocketNo. 84CA1226
StatusPublished
Cited by147 cases

This text of 727 P.2d 864 (Bassett v. State Board of Dental Examiners) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bassett v. State Board of Dental Examiners, 727 P.2d 864, 1986 Colo. App. LEXIS 1077 (Colo. Ct. App. 1986).

Opinion

BABCOCK, Judge.

Peter A. Bassett appeals the final order of the State Board of Dental Examiners (Board) revoking his license to practice dentistry in Colorado. He alleges that the Board erred in: (1) preventing him from offering expert testimony; (2) adopting findings which lacked sufficient evidentiary support in the record; (3) upholding the grant of partial summary judgment; (4) adopting ultimate conclusions that lacked sufficient findings; and (5) revoking his license for three years. We affirm in part, reverse in part, and remand for further proceedings.

Bassett was charged with multiple violations of § 12-35-118(1), C.R.S. (1985 Repl. Vol. 5) stemming from the complaints of three patients. After an extensive hearing on the complaints, the Board adopted the findings and conclusions of the hearing of[865]*865ficer and revoked Bassett’s license to practice dentistry for three years.

I.

Bassett first contends that his due process rights were violated when he was prevented from offering expert testimony on the issue whether his failure to take an intra-operative x-ray of a crowned tooth constituted dental malpractice. He argues that the procedure employed by the hearing officer, concerning testimony of experts, effectively denied him the opportunity to rebut the statements of the Board’s experts. We disagree.

Prior to the hearing, the hearing officer issued an order stating in pertinent part:

“4. All direct testimony of expert witnesses ... shall be submitted in writing on or before August 15, 1983. Examination of such witnesses at the hearing shall be limited to declaration under oath that the presubmitted statement is true, cross examination, redirect examination and such further examination as may be appropriate.
“5. All rebuttal testimony from expert witnesses ... shall be submitted in writing on or before August 22, 1983 ....” (emphasis added)

The board fully complied with the order. Two of their experts’ pre-hearing statements stressed the need for intra-operative x-rays in order to prevent a perforation of the tooth while drilling, and one of the experts asserted that Bassett’s failure to take such x-ray was conduct falling below the required standard of knowledge, skill, and care for dentists. Bassett also complied with the order, but his rebuttal expert’s statement did not address the intra-operative x-ray issue.

At the hearing, the board’s experts were subjected to full cross-examination by Bas-sett regarding their pre-hearing statements, including their opinions on the need for intra-operative x-rays. Bassett’s rebuttal witness was thereafter restricted to testimony about matters raised at the hearing which were “extraneous to the presubmit-ted direct testimony_” He was not allowed to testify concerning intra-operative x-iays because he had not addressed this issue in his presubmitted testimony. Bas-sett argued that his expert should be allowed to testify to the effect that “no one in their right mind anticipated [Bassett] would have x-rayed through a crown.” The hearing officer found that these matters had been raised in the Board’s presub-mitted direct testimony and, therefore, should have been addressed in the expert’s presubmitted rebuttal. Further, the hearing officer took as admitted the fact that it was impossible to take an x-ray through a crown.

Under the circumstances of this case, we conclude that Bassett was not denied due process of law. The procedure followed by the hearing officer was authorized by statute, see § 24-4-105(7), C.R.S. (1982 Repl. Vol. 10); Bassett had the opportunity to present rebuttal evidence via a presubmitted statement, but failed to do so; and Bassett fully cross-examined the Board’s experts on the intra-operative x-ray issue. Moreover, the hearing officer’s findings alluded only to the fact that no intra-opera-tive x-ray was taken, and his conclusions of law made no mention of the x-ray issue. Therefore, we hold that the hearing officer’s limitation on Bassett’s expert’s oral rebuttal testimony did not substantially prejudice him, and thus, no due process violation occurred. See § 24-4-105(7), C.R.S. (1982 Repl.Vol. 10); Ricci v. Davis, 627 P.2d 1111 (Colo.1981).

II.

Bassett next argues that certain of the hearing officer’s factual findings that were adopted by the Board lacked evidentiary support in the record. Our review of the record convinces us that neither of the two disputed findings of fact is clearly erroneous nor unsupported by substantial evidence. Thus, we uphold the findings. See § 24-4-106(7), C.R.S. (1982 Repl.Vol. 10); Lee v. State Board of Dental Examiners, 654 P.2d 839 (Colo.1982).

[866]*866III.

Bassett next contends that the hearing officer’s grant of partial summary judgment, adopted by the Board, was improper. We disagree.

In a separate malpractice action prior to the disciplinary hearing at issue, a judgment was entered against Bassett for negligent medical treatment of a patient. One of the charges against Bassett in the present action alleged negligent malpractice against this patient. The hearing officer, based on the judgment entered in the civil action, ruled that Bassett was collaterally estopped from denying that he had committed negligent malpractice relative to the charge, and granted the Attorney General’s motion for partial summary judgment.

Bassett does not dispute that the criteria for collateral estoppel were met in this case. See People ex rel. Gallagher v. District Court, 666 P.2d 550 (Colo.1983); Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). Rather, he argues that, under the criteria set forth in Parklane Hosiery Company, Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), the use of offensive collateral estoppel was inappropriate. We conclude that it was appropriate.

The use of offensive collateral estoppel was approved in Parklane, to be decided on a case-by-case basis depending on whether its use would promote judicial economy, whether the defendant had sufficient incentive to defend in the first action, and whether any procedural guarantees are available to the defendant in the second action which were not available in the first.

Here, in the malpractice action compensatory damages of $196,000 as well as $20,-000 in punitive damages were sought against Bassett. Further, the possibility of disciplinary action following an adverse judgment was distinctly foreseeable. See § 12-35-118(1)(s), C.R.S. (1985 Repl.Vol. 5). Thus, Bassett had every incentive to defend the civil suit fully and vigorously. See Parklane, supra.

Moreover, the application of collateral es-toppel promoted judicial economy because the witnesses in the civil suit did not have to be recalled to testify to the same facts, and Bassett does not assert the existence of any procedural opportunities available to him at the administrative hearing which were not available at the civil jury trial. See Parklane, supra.

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Bluebook (online)
727 P.2d 864, 1986 Colo. App. LEXIS 1077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bassett-v-state-board-of-dental-examiners-coloctapp-1986.