Strigenz v. Department of Regulation & Licensing Dentistry Examining Board

307 N.W.2d 664, 103 Wis. 2d 281, 1981 Wisc. LEXIS 2791

• Court: Wisconsin Supreme Court
• Decided: July 6, 1981
• Docket: 80-189
• Status: Published

Opinions

STEINMETZ, J.

The circuit court for Washington county, the Honorable J. Tom Merriam, entered judgment November 1, 1979, vacating and setting aside on judicial review a decision and order of the Dentistry Examining Board dated December 14, 1978, limiting the professional dentistry license of Anthony J. Strigenz, D.D.S., and also dismissing the amended complaint in this disciplinary proceeding. The court of appeals affirmed the decision of the trial court.¹

Dr. Anthony J. Strigenz, D.D.S. (hereinafter Dr. Strigenz) is a dentist licensed to practice dentistry in this state. On November 3, 1976, Barbara Grogan, investigator of the department of regulation and licensing, filed an amended complaint against Dr. Strigenz. The complaint alleged, in part, that Dr. Strigenz was guilty of incompetence and a high degree of negligence in his treatment and provision of dental services to 14 named patients, and such level of treatment constituted unprofessional conduct in the course of practicing dentistry, contrary to sec. 447.07(3) (a) and 447.07(5), Stats.

Dr. Strigenz filed an answer and affirmative defense to the amended complaint, asserting that the Dentistry Examining Board (hereinafter board) lacked power or jurisdiction to hear or consider a license proceeding under sec. 447.07, Stats., if such proceeding was founded solely upon allegations of negligence. Before the extensive hearings commenced, Dr. Strigenz requested and received from the board a “Dental Bill of Particulars” alleging the specific faults or deficiencies as to his treatment of the patients in the complaint.

At the first hearing on December 20,1976, Dr. Strigenz moved to dismiss the proceeding alleging the Dentistry Examining Board lacks the power to suspend or revoke a dentistry license on the grounds stated in the amended complaint. The hearing examiner denied the motion to dismiss for the purpose of conducting the hearing, but expressly reserved Dr. Strigenz’s right to raise the issue, subsequent to the hearing and the filing of briefs. After the lengthy hearing process was completed, extensive briefs were filed by both sides regarding the motion to dismiss. On May 1, 1978, the hearing examiner denied Dr. Strigenz’s motion to dismiss in a 16-page decision.

On June 24, 1978, the hearing examiner issued his findings of fact, conclusions of law and proposed order, totaling nine pages, accompanied by a 32-page memorandum opinion. These findings of fact were drawn by the examiner from the 3,530 pages of transcript of hearing testimony. The examiner made specific findings of fact as to 12 patients of Dr. Strigenz’s. As to the treatment of 11 of these patients, the finding was that the dental work done by Dr. Strigenz “failed to meet minimal standards of acceptable dentistry.”

The hearing examiner also found that such dental work by Dr. Strigenz “demonstrated gross incompetence and gross negligence in the performance of his profession” and concluded, as a matter of law, that by such demonstration of gross incompetence and gross negligence, Dr. Strigenz “engaged in unprofessional conduct in the course of practicing dentistry contrary to sec. 447.07(3) (a) and 447.07(5), Stats.”²

Following' the filing of objections to the decision by both sides, the Dentistry Examining Board, on December 14,1978, adopted the decision of the examiner and limited the dentistry practice of Dr. Strigenz by excluding three areas of dentistry from his practice, periodontia, endo-dontia and fixed prosthodontics.

The issue before the court of appeals and this court is whether the authority of the Dentistry Examining Board, under sec. 447.07(3) (a), Stats., to discipline a licensed dentist for “unprofessional conduct in the course of practicing dentistry” includes the authority to discipline a dentist for his failure to meet minimal standards of acceptable dentistry thereby demonstrating gross incompetence and gross negligence in the practice of dentistry. The sufficiency of the evidence in the record to sustain such findings of fact is not, pursuant to agreement between counsel at the circuit court level, an issue before the court of appeals or this court.

Dr. Strigenz claims a lack of due process due to the lack of “advance warning of the limits of permissible conduct” for him as a licensed dentist. He argues that the statutory term “unprofessional conduct” refers to ethics and not the quality of practice.

Sec. 447.07 (3), Stats., allows the board to investigate and conduct hearings in regard to any alleged actions of any licensed dentist or certified dental hygienist to determine whether the licensed holder has been guilty of: “ (a) Immoral, dishonorable or unprofessional conduct in the course of practicing dentistry.”

Unprofessional conduct is defined in sub. (5) in several ways and finally “and, in the case of a dentist, conduct unbecoming a professional person.”

A licensed dental hygienist does not practice dentistry as discussed in sec. 447.07(3) (a), Stats. A dental hygienist must function “under the direct supervision of a licensed dentist.”³

Therefore, a licensed dental hygienist may be investigated, suspended, or revoked or reprimanded for acts relevant to that profession in sub. (3) but not for conduct unbecoming a professional person in the course of practicing dentistry which applies only to licensed dentists.

The amicus curiae brief of the Wisconsin affiliate of the American Civil Liberties Union claims the term “conduct unbecoming a professional person” is too vague and amorphous a phrase so that Dr. Strigenz is not warned nor advised what he may not do as a licensed dentist or putting it in reverse, he is not advised what he may do as a licensed dentist to be a professional person.

Sec. 15.08(5) (b), Stats., authorizes rule making by the examining board to “enforce professional conduct and unethical practices not inconsistent with the law relating to the particular trade or profession”⁴ and sec. 227.014 (2) (a), Stats., authorizes rule making “necessary to effectuate the purpose of the statutes. . . .”⁵

To this time the Dentistry Examining Board has not utilized its statutory rule-making powers for its authority under sec. 447.07, Stats.

It is not necessary that a written rule declare that a professional person must practice his or her profession in a minimally competent manner. It is not necessary to adopt a standard to declare that a licensed person must apply his or her professional skills in a minimally competent manner for that professional person to be on notice of such requirement.

The term “conduct unbecoming a professional person” in the statute was not meant by the legislature to govern only ethical or moral conduct of the licensed professional. That is not the intended meaning of the phrase, since in the same section immorality has already been prohibited. Other language of sec. 447.07 (5), Stats., has prohibited stealing, lying, fraud, deceit, betrayal, habitual intemperance and gross immorality. With that litany of prohibited behavior listed, certainly the phrase “conduct unbecoming a professional person” was not meant to govern exclusively the moral conduct of dentists.

To determine the meaning of the phrase, we look to the purpose of the statute. The purpose of the statute is to license persons as dentists as a privilege to the exclusion of all others in the practice of dentistry. That is a prime purpose of the statute; however, the end sought in granting the privilege represented by licensing is that the state is protecting its citizens. The license when granted is a privilege which rises to a right not to be treated lightly but not without limitation and responsibilities.

The state has created the Dentistry Examining Board and the provisions of ch. 447, Stats., to assure the public that only competent persons will practice dentistry. When the professional license is issued to a dentist, the state assures the public of the competence of that person. As long as that person holds the dentistry license, the state of Wisconsin continues to assure the public of his or her competence as a dentist. The state does not rank nor rate the competence of the dentist but at the very least, the state does assure the public that the licensed dentist is competent to perform at a minimal standard as determined by others in the profession.

Neither Dr. Strigenz nor any other licensed professional can convincingly argue that he was not on notice that he had to perform professionally in a minimally competent manner for his conduct to be becoming a professional person.

The basis and purpose of a licensing statute in Wisconsin was stated in State ex rel. Wis. Registration Bd. of Architects & Professional Engineers v. T. V. Engineers, 30 Wis.2d 434, 438-39, 141 N.W.2d 235, 237 (1966):

“Sec. 101.31, Stats., and its several subdivisions, regulate the practice of architects and professional engineers. It is founded in the police power of the state to protect the public welfare and to safeguard the life, health and property of its citizens. This statute, as all licensing regulatory statutes, is not enacted for the benefit of the persons licensed thereunder but for the benefit and protection of the public.”

In State ex rel. Green v. Clark, 235 Wis. 628, 631, 294 N.W. 25, (1940), the court stated, “Protection of the public is the purpose of requiring a license.”

This court has sustained administrative decisions involving standards claimed to be too vague. In Lewis Realty v. Wisconsin Real Estate Brokers’ Board, 6 Wis.2d , 94 N.W.2d 238 (1959), a regulatory statute empowered the Real Estate Brokers’ Board to impose discipline on a broker who “Demonstrated untrustworthiness or incompetency to act as a broker or salesman in such manner as to safeguard the interests of the public” or who had “Been guilty of any other conduct, whether of the same or a different character from that specified herein, which constitutes improper, fraudulent, or dishonest dealing.” Sec. 136.08(2) (i) and (k), Stats. 1955. On appeal the argument was “that the term ‘improper . . . dealing’ found in sec. 136.08(2) (k), is too indefinite in meaning to afford any guide of conduct to licensed real-estate brokers and salesmen and is therefore unconstitutional and void.” Id. at 106. The court did not agree and held “it is the duty of this court to so interpret a statute as to uphold its constitutionality if this can be reasonably done without doing violence to the accepted rules of statutory interpretation.” Id. at 108. Under this mandate the court found that the meaning of the disputed term was apparent from the context of the statutes as a whole and was not excessively vague.

This court followed a similar approach in Milwaukee v. Wilson, 96 Wis.2d 11, 14, 291 N.W.2d 452 (1980) (loitering “ ‘in a manner and under circumstances manifesting the purpose of inducing . , . prostitution’ ” not excessively vague); State v. Biller, 262 Wis. 472, 482, 55 N.W.2d 414 (1952) (statutory term providing that a landowner shall not cut timber on an acreage “ ‘substantially in excess’ ” of his adjoining land is not so indefinite as to violate due process); and State v. Zwicker, 41 Wis.2d 497, 509, 164 N.W.2d 512 (1969) (disorderly conduct “under circumstances in which such conduct tends to cause or provoke a disturbance” is not so vague as to violate due process).

This court stated in Vivian v. Examining Board of Architects, 61 Wis.2d 627, 635-36, 213 N.W.2d 359 (1974): “Incompetence does refer to some demonstrated lack of competence or ability to perform the professional functions.”

The United States Supreme Court discussed the permissibility of a commission to promulgate a rule or proceed with enforcement of its responsibilities and that failure to do so did not withdraw all power from the agency to perform its duties. In Securities Comm’n v. Chenery Corp., 332 U.S. 194, 202 (1947), that court stated:

“The function of filling in the interstices of the Act should be performed, as much as possible, through this quasi-legislative promulgation of rules to be applied in the future. But any rigid requirement to that effect would make the administrative process inflexible and incapable of dealing with many of the specialized problems which arise. . . . Not every principle essential to the effective administration of a statute can or should be cast immediately into the mold of a general rule. Some principles must await their own development, while others must be adjusted to meet particular, unforeseeable situations. In performing its important functions in these respects, therefore, an administrative agency must be equipped to act either by general rule or by individual order. To insist upon one form of action to the exclusion of the other is to exalt form over necessity.” (Citation omitted.)

In Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P.2d 828 (1968), that state’s supreme court concluded a physician’s license could be revoked on the basis of “extreme incompetence” within the meaning of the statutorily proscribed standard of “unprofessional conduct” despite the absence of “extreme incompetence” from the 11 statutory enumerated grounds for disciplinary action. At 454 that court stated:

“We conclude the board may revoke a license on the basis of extreme incompetence and in so doing here the board has not unlawfully created a new ground of revocation.”

The Minnesota Supreme Court decided the same issue in Reyburn v. Minnesota State Board of Optometry, 247 Minn. 520, 523-24, 77 N.W.2d 661 (1956) as follows:

“ ‘Unprofessional conduct’ is conduct which violates those standards of professional behavior which through professional experience have become established, by the consensus of the expert opinion of the members, as reasonably necessary for the protection of the public interest. . . .

“The legislature need not enumerate what specific acts or omissions constitute unprofessional conduct since the phrase ‘unprofessional conduct’ itself provides a guide for, and a limitation upon, the exercise by the board of its power to revoke a practitioner’s license. . . . The board is thereby empowered to declare as ‘unprofessional’ only such conduct as fails to conform to those standards of professional behavior which are recognized by a consensus of expert opinion as necessary for the public’s protection.”

The purpose of the statutory power of the Dentistry Examining Board is to discipline dentists to protect the public. State ex rel. Milwaukee Medical College v. Chittenden, 127 Wis. 468, 534, 107 N.W. 500, 522 (1906). This court in Rust v. State Board of Dental Examiners, 216 Wis. 127, 130-31, 256 N.W. 919, 921 (1934), stated the reason for this exercise of police power as follows:

“The law contemplates regulation of the profession to such an extent as to protect the public, not only against the acts of unprofessional conduct of licensed dentists, but also against those who, by management or some other intimate relation, are in charge of those who are practicing dentistry under a single management. . . . The state in its soverign capacity is vested with police power which includes the power to conserve and protect the public health.. . .

“Such statutes as the one in question are not passed for the purpose of promoting the personal ends of individuals, but are statutory enactments in the exercise of the police power of the state to legislate for the safety, health, and welfare of the people.”

This court holds the Dentistry Examining Board has authority under sec. 447.07 (3) (a) and (5), Stats., to discipline a licensed dentist for “unprofessional conduct” or “conduct unbecoming a professional person,” based on findings of fact of a failure to meet minimal standards of acceptable dentistry, without enactment of specific rules prohibiting such acts.

The decision of the court of appeals is reversed and the trial court’s order granting the motion to dismiss the complaint is vacated and the motion is ordered denied.

By the Court: The decision of the court of appeals is reversed.

1 Strigenz v. Dentistry Examining Board, 99 Wis.2d 445, 299 N.W.2d 589 (Ct. App. 1980).

2 Sec. 447.07(3) (a) and (5), Stats., provides:

“(3) Subject to the rules promulgated under s. 440.03(1), the examining board may on its own motion make investigations and conduct hearings in regard to any alleged actions of any licensed dentist or certified dental hygienist, or of any other person it has reason to believe is acting or has acted in such capacity within the state, and may, on its own motion, or upon complaint in writing, suspend or revoke such license, registration or certificate, or reprimand the holder thereof if it finds that the holder has been guilty of:

“(a) Immoral, dishonorable or unprofessional conduct in the course of practicing dentistry;

“(5) ‘Immoral, dishonorable or unprofessional conduct’ means: Employing anyone to solicit patients; or resorting to unprofessional advertising, as defined in sub. (6); obtaining a fee by-fraud or deceit; wilfully betraying a professional secret; employing directly or indirectly a student or a suspended or unlicensed dentist to perform operations or make diagnoses, or to treat lesions of the human teeth or jaws, or to correct malposed formations thereof, except that an unlicensed person may perform exclusively mechanical work upon inert matter in a dental office or laboratory; the advertisement of dental business or treatment or devices in which untruthful or incorrect statements are made; habitual intemperance; or gross immorality; and, in the case of a dentist, conduct unbecoming a professional person.”

3 “447.08 Dental hygienists. (1) No person shall practice as a dental hygienist without a certificate from the dentistry examining board. Such a certificate shall authorize the holder, under the direct supervision of a licensed dentist, to perform those functions for which the hygienist has been trained in a school approved by the board.”

4 Sec. 15.08(5) (b), Stats., provides:

“(5) General POWERS. Each examining board:

“(b) Shall formulate rules for its own guidance and for the guidance of the trade or profession to which it pertains, and define and enforce .professional conduct and unethical practices not inconsistent with the law relating to the particular trade or profession.”

5 Sec. 227.014(2) (a), Stats, provides:

“(2) Rule-making authority hereby is expressly conferred as follows:

“(a) Each agency is authorized to adopt such rules interpreting the provisions of statutes enforced or administered by it as it considers to be necessary to effectuate the purpose of the statutes, but such rules are not valid if they exceed the bounds of correct interpretation.”