Disciplinary proceedings against a dentist; Violation of MCL 333.16221(a) (negligence or failure to exercise due care) & (b)(i) (incompetence); Failure to take x-rays; Incomplete pulpotomies; Failure to maintain records of patient referrals; MI Admin Code, R 338.11120; Whether the administrative law judge’s (ALJ) decision was supported by competent, material, & substantial evidence on the whole record; Board of Dentistry’s Disciplinary Subcommittee (DSC); Standard of care (SOC); Public Health Code (PHC)

Rejecting respondent-dentist’s argument that “the ALJ’s decision was not supported by competent, material, and substantial evidence on the whole record[,]” the court affirmed the DSC’s final order, which found that respondent violated MCL 333.16221(a) and (b)(i). The case arose from his treatment of a child, HT. After a “hearing, the ALJ entered a proposal for decision, concluding that, by a preponderance of the evidence, respondent’s conduct fell below the [SOC] by (1) failing to take x-rays, (2) failing to complete the pulpotomies, and (3) failing to maintain copies of the referrals in the child’s chart.” The DSC denied respondent’s exceptions and issued the final order. It ordered him to “be placed on probation for a minimum of one day, not to exceed six months, during which he must complete 12 hours of continuing education, comply with the” PHC, and pay a $2,500 fine. As to the failure to take x-rays, in “addition to evidence of respondent’s lack of experience, the ALJ relied on” the testimony of petitioner’s expert (Dr. J) “about the necessity of x-rays before pulpotomies in her determination.” The court concluded that “the ALJ did not exhibit youth bias and her findings regarding respondent’s lack of experience and the x-rays were amply supported by the record.” As to incomplete pulpotomies, “the ALJ did not find credible respondent’s explanation that he had known all along that the pulpotomies were incomplete and that a specialist should finish them. In doing so, the ALJ relied on the clinical notes and [J’s] testimony. The evidence amply supported these findings.” Finally, the court rejected “respondent’s argument that the expressio unius negative-implication maxim should lead [it] to conclude, as a matter of law, that Rule 338.11120’s silence on the issue of maintaining records of referrals means that failure to maintain such records cannot violate the [SOC] under MCL 333.16221(a). A licensed healthcare professional can violate the [PHC] by failing to exercise due care or by violating an administrative rule[.]” The court also rejected his claim “that the DSC’s order violates his substantive due-process rights because Rule 338.11120 is silent on the issue of maintaining referrals in patients’ charts and thus fails to provide adequate notice that doing so is required.” It noted that he was “not accused of violating Rule 338.11120; rather, [his] discipline was for failure to comply with the [SOC] as required by MCL 333.16221.”