{ "id": 11865676, "name": "PAUL A. HOMOLY, D.D.S., Petitioner-Appellant v. NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Respondent-Appellee", "name_abbreviation": "Homoly v. North Carolina State Board of Dental Examiners", "decision_date": "1997-01-07", "docket_number": "No. COA96-252", "first_page": "127", "last_page": "131", "citations": [ { "type": "official", "cite": "125 N.C. App. 127" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "407 S.E.2d 596", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "600", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "104 N.C. App. 52", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520055 ], "year": 1991, "pin_cites": [ { "page": "58", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/104/0052-01" ] }, { "cite": "306 S.E.2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1983, "pin_cites": [ { "page": "536" }, { "page": "536" }, { "page": "539" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 67", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526180 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "68-69" }, { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0067-01" ] }, { "cite": "468 S.E.2d 557", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "pin_cites": [ { "page": "560" } ], "opinion_index": 0 }, { "cite": "122 N.C. App. 58", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 8527049 ], "year": 1990, "pin_cites": [ { "page": "503" } ], "opinion_index": 0, "case_paths": [ "/nc-app/100/0498-01" ] }, { "cite": "443 S.E.2d 114", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1994, "pin_cites": [ { "page": "117" }, { "page": "118", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "114 N.C. App. 668", "category": "reporters:state", "reporter": "N.C. 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App.", "case_ids": [ 11919832 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/121/0695-01" ] } ], "analysis": { "cardinality": 490, "char_count": 8620, "ocr_confidence": 0.744, "pagerank": { "raw": 4.89950402824256e-08, "percentile": 0.30876240275012173 }, "sha256": "1a233447c8fb89be6eaa7dec6fe8ecb381bc8112e5de2d86686583cff1fad4d4", "simhash": "1:a9ac915f396226d0", "word_count": 1331 }, "last_updated": "2023-07-14T22:18:02.941264+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges LEWIS and SMITH concur." ], "parties": [ "PAUL A. HOMOLY, D.D.S., Petitioner-Appellant v. NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Respondent-Appellee" ], "opinions": [ { "text": "WALKER, Judge.\nOn 25 April 1988, Ms. Vickie Ebbers consulted with petitioner, a licensed dentist, regarding the placement of fixed dental implants, dentures, and a lower bridge in her mouth. Ebbers agreed to a treatment plan recommended by petitioner which included the placement of implants and two dental bridges. On 14 July 1988, petitioner placed dental implants in Ebber\u2019s mouth. Later, on 16 August 1989, petitioner placed a bridge in Ebber\u2019s upper arch, and on 20 December 1989, Dr. Rossitch, petitioner\u2019s employee, placed a bridge in Ebber\u2019s lower arch. Petitioner continued to treat Ebbers until 15 May 1991. On 1 February 1993, Ebbers filed a complaint with respondent regarding the treatment she received from petitioner.\nAfter an evidentiary hearing, respondent found that petitioner had failed to comply with the applicable standard of care in his treatment of Ebbers and that such failure constituted negligence. Petitioner was formally reprimanded for his conduct but additional disciplinary action was deferred for a period of five years provided that he abide by certain probationary terms. Petitioner, pursuant to N.C. Gen. Stat. \u00a7 150B-45 (1995), petitioned the trial court seeking review of respondent\u2019s decision to reprimand him. The trial court affirmed respondent\u2019s decision.\nOn appeal, petitioner first contends that N.C. Gen. Stat. \u00a7 150B-22 (1995) requires respondent to attempt to resolve its disputes through informal settlement procedures before proceeding to a formal hearing. Petitioner argues that because respondent did not attempt to resolve the dispute through informal settlement procedures, his case never properly became a \u201ccontested case\u201d under N.C. Gen. Stat. \u00a7 150B-22, and respondent did not have jurisdiction to hear his case. This Court, in another case involving petitioner, recently rejected the same argument. In Homoly v. N.C. State Bd. of Dental Examiners, 121 N.C. App. 695, 468 S.E.2d 481, review denied, 343 N.C. 306, 471 S.E.2d 71 (1996), our Court held that N.C. Gen. Stat. \u00a7 150B-22 did not apply to respondent. We find Homoly controlling in the present case, and it is therefore unnecessary to further address this issue.\nPetitioner also contends that the trial court erred in upholding respondent\u2019s decision to reprimand him because respondent\u2019s decision was not supported by the evidence. The North Carolina Administrative Procedure Act (APA), codified in Chapter 150B of the General Statutes, governs trial and appellate court review of administrative agency decisions. Amanini v. N.C. Department of Human Resources, 114 N.C. App. 668, 673, 443 S.E.2d 114, 117 (1994). The court\u2019s scope of review is described in N.C. Gen. Stat. \u00a7 150B-51(b) (1995) as follows:\n[T]he court reviewing a final decision may affirm the decision of the agency or remand the case for further proceedings. It may also reverse or modify the agency\u2019s decision if the 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.\nThe standard of review to be applied by the reviewing court depends on the issues presented on appeal. Amanini, 114 N.C. App. at 674, 443 S.E.2d at 118 (citations omitted).\nIf [petitioner] argues the agency\u2019s decision was based on an error of law, then \u201cde novo\u201d review is required. If, however, [petitioner] questions (1) whether the agency\u2019s decision was supported by the evidence or (2) whether the decision was arbitrary or capricious, then the reviewing court must apply the \u201cwhole record\u201d test.\nId. Under the \u201cde novo\u201d standard, the reviewing court must consider the question presented on appeal anew, as if undecided by an agency, whereas under the \u201cwhole record\u201d test, the reviewing court must consider all competent evidence to determine whether the agency\u2019s decision is supported by substantial evidence. Id. \u201cSubstantial evidence\u201d is that amount of evidence a reasonable person would consider adequate to support a particular conclusion. Walker v. N.C. Dept. of Human Resources, 100 N.C. App. 498, 503, 397 S.E.2d 350, 354 (1990), cert. denied, 328 N.C. 98, 402 S.E.2d 430 (1991). The scope of review of this Court is to examine the \u201cwhole record\u201d in order to determine whether substantial evidence exists to support respondent\u2019s findings and conclusions that petitioner failed to comply with the applicable standard of care. See Dorsey v. UNC-Wilmington, 122 N.C. App. 58, 62-63, 468 S.E.2d 557, 560 (1996).\nBecause petitioner contends that respondent\u2019s decision to reprimand him for negligence was not supported by the evidence, the \u201cwhole record\u201d test was the proper standard of review for the trial court to apply. The trial court concluded in its judgment that respondent\u2019s findings of fact, conclusions of law, and decision were supported by the record (R. at 29); therefore, it properly applied the \u201cwhole record\u201d test. We must next examine the \u201cwhole record\u201d to ascertain whether substantial evidence exists to support respondent\u2019s decision.\nAt the evidentiary hearing, petitioner and respondent offered conflicting evidence on the issue of petitioner\u2019s negligence. Petitioner complains that the only evidence to support respondent\u2019s findings of fact was provided by Dr. Samuel Davis, and that because Dr. Davis had treated Ebbers and another patient involved in the same hearing against petitioner, his testimony was biased and lacked credibility. As this Court stated in Little v. Board of Dental Examiners, 64 N.C. App. 67, 68-69, 306 S.E.2d 534, 536 (1983), \u201c[i]n an administrative proceeding, it is the prerogative and duty of that administrative body ... \u2018to determine the weight and sufficiency of the evidence and the credibility of the witnesses, to draw inferences from the facts, and to appraise conflicting and circumstantial evidence.\u2019 \u201d Thus, respondent \u201c \u2018may accept or reject in whole or part the testimony of any witness.\u2019 \u201d Id. at 69, 306 S.E.2d at 536. In addition,\n[i]t is within the province of [respondent] as an administrative agency to apply its own expertise in its conduct and evaluation of a disciplinary hearing. In the process of accepting or rejecting expert testimony the law does not require [respondent] to identify its method of reasoning or its method of determining credibility.\nWoodlief v. N.C. State Bd. of Dental Examiners, 104 N.C. App. 52, 58, 407 S.E.2d 596, 600 (1991) (citations omitted). As in Little, respondent, whose composition includes licensed dental professionals, was qualified to judge whether petitioner violated the standard of care of a licensed dentist practicing in North Carolina. See Little, 64 N.C. App. at 75, 306 S.E.2d at 539.\nAfter reviewing the \u201cwhole record,\u201d we find substantial evidence exists to support respondent\u2019s decision to reprimand petitioner; therefore, the trial court did not err in upholding respondent\u2019s decision.\nAffirmed.\nJudges LEWIS and SMITH concur.", "type": "majority", "author": "WALKER, Judge." } ], "attorneys": [ "Frank R. Recker & Associates, by Frank R. Recker; and Kennedy, Covington, Lobdell & Hickman, by Kir an H. Mehta and Lara E. Simmons; for petitioner-appellant.", "Bailey & Dixon, L.L.P., by Ralph McDonald and Denise Stanford Haskell, for respondent-appellee." ], "corrections": "", "head_matter": "PAUL A. HOMOLY, D.D.S., Petitioner-Appellant v. NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, Respondent-Appellee\nNo. COA96-252\n(Filed 7 January 1997)\n1. Administrative Law and Procedure \u00a7 46 (NCI4th)\u2014 complaint against dentist \u2014 informal settlement procedures not required \u2014 contested case\nThe State Board of Dental Examiners\u2019 failure to attempt to resolve a patient\u2019s complaint against a dentist through informal settlement procedures did not prevent the dispute from becoming a contested case within the jurisdiction of the Board.\nAm Jur 2d, Administrative Law \u00a7\u00a7 279, 299.\n2. Physicians, Surgeons, and Other Health Care Professionals \u00a7 60 (NCI4th)\u2014 dentist \u2014 negligent treatment \u2014 reprimand \u2014 sufficient evidence\nA decision of the State Board of Dental Examiners to reprimand a dentist for negligence in the treatment of a patient was supported by substantial evidence.\nAm Jur. 2d, Physicians, Surgeons, and Other Healers \u00a7\u00a7 111, 116-118.\nAppeal by petitioner from judgment entered 18 December 1995 by Judge H.W. Zimmerman, Jr. in Union County Superior Court. Heard in the Court of Appeals 31 October 1996.\nFrank R. Recker & Associates, by Frank R. Recker; and Kennedy, Covington, Lobdell & Hickman, by Kir an H. Mehta and Lara E. Simmons; for petitioner-appellant.\nBailey & Dixon, L.L.P., by Ralph McDonald and Denise Stanford Haskell, for respondent-appellee." }, "file_name": "0127-01", "first_page_order": 165, "last_page_order": 169 }