{
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  "name": "HENRY MILTON BEST, III, D.D.S., Petitioner v. NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Respondent",
  "name_abbreviation": "Best v. North Carolina State Board of Dental Examiners",
  "decision_date": "1992-12-01",
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    "judges": [
      "Judges JOHNSON and COZORT concur."
    ],
    "parties": [
      "HENRY MILTON BEST, III, D.D.S., Petitioner v. NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Respondent"
    ],
    "opinions": [
      {
        "text": "LEWIS, Judge.\nThe petitioner is a periodontist who practices in Jacksonville. By this action he seeks to determine what constitutes a \u201clawfully qualified nurse\u201d in N.C.G.S. \u00a7 90-29(b)(6). We must determine whether the Dental Board or the Nursing Board has the authority and jurisdiction to define \u201clawfully qualified nurse\u201d under this provision of the Dental Practice Act.\nIn May 1986, to assist him in his dental practice, petitioner hired a registered nurse. Petitioner trained the nurse, and delegated to her, among other duties, the task of administering intraoral injections of anesthetic. Petitioner inquired of the North Carolina State Board of Dental Examiners (\u201cDental Board\u201d) whether delegation of this particular duty comported with the Dental Practice Act.\nUnder this Act, only those specifically licensed to do so are permitted to practice dentistry in this State. N.C.G.S. \u00a7\u00a7 90-22(a), 29(a) (1990). The statute holds that a person practices dentistry in the state if he:\n(6) Administers an anesthetic of any kind in the treatment of dental or oral diseases or physical conditions, or in preparation for or incident to any operation within the oral cavity; provided, however, that this subsection shall not apply to a lawfully qualified nurse or anesthetist who administers such anesthetic under the supervision and direction of a licensed dentist or physician.\nN.C.G.S. \u00a7 90-29(b)(6) (1990) (emphasis added).\nUpon receiving petitioner\u2019s inquiry, the Dental Board contacted the North Carolina Board of Nursing (\u201cNursing Board\u201d) to \u201crequest a ruling as to whether nurses licensed in North Carolina are lawfully qualified to inject anesthetics intraorally.\u201d In response, the Nursing Board concluded that a \u201clawfully qualified nurse\u201d pursuant to N.C.G.S. \u00a7 90-29(b)(6) meant a certified registered nurse anesthetist (\u201cCRNA\u201d). While we can find no indication of it in the record, the Dental Board apparently then relayed this information to the petitioner. Believing the determination to be overly restrictive, petitioner contacted and petitioned the Nursing Board to reconsider its ruling.\nIn response to petitioner\u2019s petition, the Nursing Board amended its determination of lawfully qualified nurses for the purpose of administering anesthetic intraorally. The Nursing Board determined that:\n[i]t is within the scope of practice of the registered nurse to administer intraoral local infiltrates for dental procedure provided that there is (1) written protocol, (2) documentation of appropriate training and supervised clinical practice and (3) written approval of agency administration and/or appropriate dentist or physician. (January 1987) (emphasis original).\nIn response, the Dental Board wrote to the Nursing Board and expressed its concern over this determination.\nThe Dental Board then, in response to petitioner\u2019s request, issued a declaratory ruling holding that a \u201clawfully qualified nurse\u201d under N.C.G.S. \u00a7 90-29(b)(6) is a CRNA. Petitioner sought judicial review. The Superior Court vacated the Dental Board\u2019s ruling, and held that the \u201cNorth Carolina Board of Nursing, and not the [Dental Board], has the authority and jurisdiction to interpret the phrase \u2018lawfully qualified nurse\u2019 in N.C.G.S. \u00a7 90-29(b)(6).\u201d The.Dental Board appealed.\nA reviewing court (here the Superior Court) may reverse or modify an agency\u2019s final decision if:\nthe substantial rights of the petitioners may have been prejudiced because the agency\u2019s findings, inferences, conclusions, or decisions are:\n(1) In violation of constitutional provisions;\n(2) In excess of the statutory authority or jurisdiction of the agency;\n(3) Made upon unlawful procedure;\n(4) Affected by other error of law;\n(5) Unsupported by substantial evidence admissible under G.S. 150B-29(a), 150B-30, or 150B-31 in view of the entire record as submitted; or\n(6) Arbitrary or capricious.\nN.C.G.S. \u00a7 150B-51(b) (1991).\nPetitioner\u2019s request for judicial review claimed that the Dental Board\u2019s ruling was in excess of its statutory authority, was made upon an unlawful procedure, was affected by erroneous interpretation of law, and was arbitrary and capricious. The basic issues on appeal concern (1) the correct statutory interpretation of the term \u201clawfully qualified nurse,\u201d and (2) which agency has the authority to interpret its meaning in the present context. Errors made in interpreting a statute are errors of law. Savings and Loan League v. Credit Union Comm\u2019n, 302 N.C. 458, 464, 276 S.E.2d 404, 409 (1981). \u201cWhen the issue on appeal is whether a state agency erred in interpreting a statutory term, an appellate court may freely substitute its judgment for that of the agency and employ de novo review.\u201d Id. at 465, 276 S.E.2d at 410 (citations omitted).\nWe utilize the \u201cwhole record\u201d test in our review. When an appellate court reviews a lower court\u2019s decision as opposed to when it hears direct appeals from administrative agency\u2019s decisions, review is governed by N.C.G.S. \u00a7 150B-52 (1991). The scope of review in these instances is the same as it is for other civil cases. Henderson v. North Carolina Dep\u2019t of Human Resources, 91 N.C. App. 527, 531, 372 S.E.2d 887, 890 (1988); see also Scroggs v. North Carolina Criminal Justice Standards Comm\u2019n, 101 N.C. App. 699, 400 S.E.2d 742 (1991). \u201cThus, our consideration of the superior court judgment is limited to determining whether the court committed any errors of law. . . . [W]e must consider the \u2018whole record\u2019 so that we may determine whether the superior court judge was correct as a matter of law\u201d in vacating the Dental Board\u2019s ruling. Henderson, 91 N.C. App. at 531, 372 S.E.2d at 890.\nIn considering the whole record, we must determine if the agency\u2019s findings and conclusions are supported by substantial evidence, or, evidence that a reasonable mind could find adequate to support a conclusion. North Carolina Dep\u2019t of Correction v. Hodge, 99 N.C. App. 602, 610, 394 S.E.2d 285, 289 (1990). We must take into account both evidence that supports and that contradicts the agency\u2019s decision. Our question, essentially, is whether the agency\u2019s decision has a rational basis in the evidence. Id. (quoting In re Rogers, 297 N.C. 48, 65, 253 S.E.2d 912, 922 (1979)).\nWe note first that although courts are the final interpreters of statutory terms, \u201cthe interpretation of a statute by an agency created to administer that statute is traditionally accorded some deference.\u201d Savings and Loan League v. Credit Union Comm\u2019n, 302 N.C. 458, 466, 276 S.E.2d 404, 410 (1981). The Legislature has conferred the authority to regulate the practice of dentistry on the North Carolina State Board of Dental Examiners. N.C.G.S. \u00a7 90-22(b) (1990). N.C.G.S. \u00a7 90-29 defines and regulates the practice of dentistry in this State.\nThe Dental Board found that the administration of oral injections \u2014except by lawfully qualified nurses and anesthetists who do so under a dentist\u2019s supervision \u2014 constituted the practice of dentistry. The Dental Board further found that administering anesthetic can be a dangerous procedure if performed by an improperly trained person. The Board found that nurses are not generally trained in the anatomy of the mouth, in dentistry in particular, or in the intraoral administration of anesthetic. The declaratory ruling also held that lawfully qualified nurses under N.C.G.S. \u00a7 90-29 are certified registered nurse anesthetists, because CRNAs are \u201ctrained in the anatomy of [the] neck and mouth, . . . and [are] trained to deal with the types of emergencies that could arise in connection with the use of anesthesia.\u201d The Dental Board reasoned that this holding would assure more consistent and uniform training of nurses, and thereby be more protective of the public health, safety, and welfare.\n\u2022 Nurses are regulated under Chapter 90, Article 9A, more commonly referred to as the Nursing Practice Act. Under these statutory provisions, the North Carolina Board of Nursing is empowered to \u201c(1) [administer this Article; (2) [i]ssue its interpretations of this Article; [and] (3) [a]dopt, amend or repeal rules and regulations as may be necessary to carry out the provisions of this Article.\u201d N.C.G.S. \u00a7 90-171.23(b) (1990) (emphasis added). The intraoral injection of anesthetic by lawfully qualified nurses is not a subject covered in the Nursing Practice Act, but instead is specifically provided for \u2014 and characterized as \u201cdentistry\u201d \u2014 in the Dental Practice Act. We do not believe our Legislature intended that one profession set the standards of qualification for another. The authority granted the Nursing Board is limited to the practices found in the Nursing Practice Act. ,\nWe find substantial evidence in the record to uphold the declaratory ruling of the Dental Board. For the superior court to vacate this ruling constituted an error of law. We therefore reverse the Superior Court\u2019s order, and hold that the Dental Board is the correct agency to determine what kind of nurse qualifies as a \u201clawfully qualified nurse\u201d pursuant to N.C.G.S. \u00a7 90-29(b)(6).\nFinally, we note that this statute has been amended, effective 1 July 1992, to read \u201clawfully qualified nurse anesthetist.\u201d N.C.G.S. \u00a7 90-29(b)(6) (Cum. Supp. 1992). This amendment deletes the word \u201cor.\u201d Considering the evidence before us that the Dental Board lobbied for the change, there is more than a reasonable inference that \u201clawfully qualified nurse anesthetist\u201d was intended to equate CRNA. We find the matter is moot.\nReversed.\nJudges JOHNSON and COZORT concur.",
        "type": "majority",
        "author": "LEWIS, Judge."
      }
    ],
    "attorneys": [
      "Parker, Poe, Adams & Bernstein, by Heman E. Clark, Stephen D. Coggins, Jim Wade Goodman, and Sharon Coull Wilson, for petitioner-appellee.",
      "Bailey & Dixon, by Ralph McDonald, Dorothy V. Kibler, and Denise Stanford Haskell, for respondent-appellant."
    ],
    "corrections": "",
    "head_matter": "HENRY MILTON BEST, III, D.D.S., Petitioner v. NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Respondent\nNo. 9110SC1006\n(Filed 1 December 1992)\n1. Hospitals \u00a7 5 (NCI3d); Physicians, Surgeons, and Allied Professions \u00a7 5 (NCI3d)\u2014 anesthetics for dental patient \u2014lawfully qualified nurse \u2014 decision by Dental Examiners\nThe State Board of Dental Examiners, not the Board of Nursing, has the authority to determine what constitutes a \u201clawfully qualified nurse\u201d who may administer intraoral injections of anesthetics to dental patients pursuant to N.C.G.S. \u00a7 90-29(b)(6). The authority granted to the Board of Nursing is limited to the practices found in the Nursing Practice Act.\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7\u00a7 140, 244.\n2. Physicians, Surgeons, and Allied Professions \u00a7 5 (NCI3d) \u2014 anesthetics for dental patients \u2014meaning of lawfully qualified nurse \u2014amendment of statute \u2014moot issue\nThe issue of whether the Board of Dental Examiners was correct in ruling that a \u201clawfully qualified nurse\u201d who may administer intraoral injections of anesthetics under N.C.G.S. \u00a7 90-29(b)(6) means a certified registered nurse anesthetist was rendered moot when that statute was amended on 1 July 1992 to read \u201clawfully qualified nurse anesthetist.\u201d\nAm Jur 2d, Physicians, Surgeons, and Other Healers \u00a7\u00a7 140, 244.\nAppeal by respondent from order signed 26 August 1991 by Judge Henry W. Hight in Wake County Superior Court. Heard in the Court of Appeals 15 October 1992.\nParker, Poe, Adams & Bernstein, by Heman E. Clark, Stephen D. Coggins, Jim Wade Goodman, and Sharon Coull Wilson, for petitioner-appellee.\nBailey & Dixon, by Ralph McDonald, Dorothy V. Kibler, and Denise Stanford Haskell, for respondent-appellant."
  },
  "file_name": "0158-01",
  "first_page_order": 186,
  "last_page_order": 191
}
