Critics Say Patients of Regulatory Board Aren’t Top Priority

By Gaiutra Bahadur
Austin American-Statesman (Texas)

A surveillance camera recorded dentist Bradley D. Hagen fondling a female patient at the Del Valle correctional facility in 1997. The Travis County sheriff’s department arrested, then fired him. Criminal charges are pending, and five inmates have sued Hagen, alleging sexual assault.

Still, Hagen continues to practice in Manchaca. His profession’s oversight body, the Texas Board of Dental Examiners, did not temporarily suspend Hagen’s license — as state rules empower it to do and as other state agencies routinely do, even when criminal charges are pending.

Hagen, who did not return calls for comment, is contesting the criminal charges and has settled two of the lawsuits, involving three plaintiffs, said his lawyer, Scott Young.

Still, the treatment of Hagen fits a pattern: The state’s primary agency empowered with protecting consumers from bad dentists has a lower record of revoking licenses than kindred boards and has a big tent of critics including former and current employees, patients and their advocates, and state lawmakers.

The agency’s executive director, Jeff Hill, said state law prevents him from disclosing whether his agency has investigated Hagen.

“I’m sorry. I can’t talk about this, OK? Let’s just drop it,” Hill said. “I do not believe there is an indication that he is an individual who should have had his license revoked on an emergency basis, that is he posed an immediate threat to life, limb or property.”

Critics say this response to Hagen’s case illustrates that the board protects dentists, rather than consumers, and that those who rely on the board to check a dentist might not get the full picture.

Consider what the dental board’s online database shows about Charles Dyer, a pediatric dentist with a private practice in Beaumont: He received his dental license June 7, 1975. The board has never disciplined him. And he received his permit to sedate patients using nitrous oxide in July 1996.

Nothing in that sketch indicates, however, that Dyer performed the potentially dangerous procedure at least 291 times before becoming certified, according to federal and state records. In fact, he received — and later refunded — $20,425 from Medicaid for nitrous oxide sedations from 1990 to 1996.

Nor does his record contain any clues about what happened to Medicaid patient Quincy Guidry, 2 years old in December 1997, when he was admitted to the Columbia Beaumont Medical Center to have seven of his teeth capped by Dyer.

Just two weeks before, the asthmatic toddler had been put on antibiotics for wheezing, coughing and temperatures of up to 104 degrees — all documented red flags that made it risky to put him under general anesthesia, especially for elective surgery, court records say. But the hospital’s staff did so, and Quincy went into cardiac arrest. He emerged from the seizure with permanent brain damage.

“There’s no other child that should go through what mine did,” said Quincy’s father, Andrew Wariya.

He and the child’s mother, Charlotte Guidry, sued Dyer, the hospital, the anesthesiologist and the attending nurses for negligence and malpractice. A trial in Harris County Probate Court resulted in a financial settlement to help take care of Quincy, but Wariya said that’s not enough.

“It’s a tragedy that other people should know about,” he said.

The dental board knew about it, as it knew about Dyer’s nitrous oxide lapse. Dyer declined to comment, but Hill said the dentist reported the incident to the board, which conducted an investigation that led to a dismissal. But because the board doesn’t tell the public about complaints or investigations unless they lead to formal disciplining of a dentist, potential patients do not know.

Out of sunshine laws’ reach

That policy fails the public, said Lisa McGiffert, a health policy analyst in Austin with the national watchdog group Consumers Union . “You should be able to call up and find out that Dr. X had a number of complaints filed against him. That literally is the only record we have of how certain professions are doing out there,” she said.

Only a few health regulatory boards — such as the Board of Chiropractic Examiners, the Board of Occupational Therapy Examiners and the Optometry Board — make complaint histories available to the public.

But current and former employees of the dental board say the information eclipse cloaks more wrongdoing at the agency than it does at other agencies, because a greater share of valid complaints never make it to where the state’s sunshine laws reach — disciplinary action against a dentist.

The employees say the board lacks either the legal and financial muscle or the will to punish dentists who violate the standard of care, break the law or cause harm.

“Now, they’re letting dentists get away with everything,” said Jay Fackrell, 51, a retired police officer and the agency’s sole Dallas investigator for the past five years.

Agency in its second life

Lawmakers allowed the agency to die for six months in 1993, in part because of complaints of overzealousness by the agency at that time. One member of the board at that time, Austin dentist Glenda Smith, attributes the demise partly to concerns about more stringent standard-of-care measures that her board enacted.

Fackrell said the resurrected agency has been less aggressive in investigating and disciplining dentists than its predecessor.

But state Sen. Mike Moncrief, D-Fort Worth, a member of the Legislature’s Sunset Advisory Commission who sponsored the bill to restart the agency, said the opposite is true.

“There was a time when the dental board was less than aggressive,” he said. “I don’t find it to be the case now. I would be very disappointed if information was being withheld that allowed patients to be abused. I don’t feel that’s the case.”

The law that re-established the agency gave the board the authority to suspend a license temporarily and changed the board’s structure to allow more non-dentists to serve.

Texas revokes or negotiates the surrender of fewer dental licenses than states with like demographics that conduct a similar number of investigations. Last year in the Lone Star State, only 0.4 percent of investigations led to the loss of a license, compared with about 4 percent in both California and Florida. The Texas boards that regulate nurses, physicians and physician assistants also revoke or secure the surrender of licenses in a higher percentage of cases than the dental board does.

Last year, the board revoked only one license — that of a Georgia dentist found guilty of insurance fraud who then committed identity theft to become licensed in Texas. Of 27 dentists disciplined by the board, the majority received probation. They included a few who prescribed drugs to themselves, one who practiced with an expired or nonrenewable license, another convicted of insurance fraud and a crack cocaine addict.

In the past five years, the board has revoked five licenses. One dentist is appealing the revocation. The board has negotiated the surrender of six licenses.

Hill — who has been at the agency since 1995, as general counsel for most of that time — defends it against criticisms of lax enforcement and said it is as aggressive as it can be, with a $1.26 million annual budget, non competitive state employee salaries and merit pay raises capped at 1.7 percent by the Legislature.

“When it’s appropriate, this board revokes the licenses of dentists,” he said, adding that he does not think it is valid to compare the board with counterparts in other states. “It could be that we’ve just got better dentists in Texas.”

Also, there are fewer resources available to the Texas dental board.

The board in California has twice as many employees as the Texas board, one-third of whom are in the enforcement division. Its budget — $6.4 million, with about 75 percent for enforcement — is five times as much as the Texas dental board’s budget. Florida divides its enforcement among several agencies, making it difficult to pin down how much it spends on investigations.

Hill acknowledged that a staff turnover rate of 30.77 percent last year, twice the average for state agencies, created delays in investigating complaints, but he said that this, too, might stem from the budget crunch.

The agency operated for a year without a full staff of investigators. Until a month ago, three of the five positions were vacant. After the enforcement director resigned in May, the investigators had no boss.

Other than salary constraints, Hill said he doesn’t know why so many employees, eight in 1999 alone, have left.

Employees’ efforts thwarted?

Fackrell, the Dallas investigator, paints a picture of a workplace that has driven key people away by not allowing them to do their job: cracking down on errant dentists as aggressively as possible.

After the state auditor’s office criticized the dental board in a report last November for not heeding the recommendations of the board’s investigators, investigators were told to stop making recommendations, employees said.

They don’t attend bimonthly hearings in Austin, partly because of a limited $70,000 travel budget used mainly by appointed members of the board. And they’re never told the outcome of hearings or notified if cases are closed.

Hill acknowledged an “us-and-them feeling” and “a sense of separateness” between investigators and the agency’s upper management, but he said he hopes the hiring last month of a new enforcement director will banish that alienation.

Still, he said investigators should not recommend disciplinary actions and that the state auditor’s office should not have used that as a criterion for judging the agency’s enforcement efforts.

“Our investigators are not dentists,” Hill said. “When we are dealing with issues that have to do with the standard of care provided by a dentist . . . our investigators, who are not experts, may miss something. They may not ask the right question.”

But according to employees who have left the agency, the board disregards investigators’ findings for reasons that go beyond the investigators’ lack of dental knowledge.

A former employee, one of three sources who asked to remain anonymous for fear of retribution, said, “When you do investigation after investigation after investigation and you see a high level of proof of serious violations, and time after time nothing happens, it’s frustrating. You don’t want to do it (anymore).”

A public safety matter

The last time Helen Dearman of Tomball took the painkiller that her dentist prescribed after a root canal in 1997, she stopped breathing, she said. That’s why she thinks the punishment meted out to the dentist, Mahnaz Messkoub, was not harsh enough.

“She was sent a warning letter, and that was that,” Dearman said.

Messkoub’s assistants had been told that Dearman was allergic to the drug, but that information somehow did not filter down to the right person at the right time, Dearman sa id. She sa id she thinks the investigation by the dental board, which took more than a year, should have resulted in a 120-day license suspension.

“That seems stiff,” she said. “But on the other hand, what if I had died?”

The fact that other patients would not know about her complaint also bothered her. It piqued other patients as well — constituents who pushed Moncrief to sponsor a bill that, last September, made warning letters formal disciplinary actions and, therefore, available to the public.

The confidentiality in the past, Hill said, was appropriate because warning letters amounted to complaint dismissals that delivered this message: “Doctor, there’s been a complaint about you. We don’t find there’s been a violation of the Dental Practice Act, but some of the information that becomes available causes the board to have some concerns about the way you do your business. You need to clean up your act.”

Despite this, the agency classified the letters as disciplinary actions in calculating its enforcement rates for the Legislature. The result: inflated rates that, in fiscal year 1999, amounted to more than twice the agency’s actual record of complaint enforcement.

The agency reported a 13.3 percent rate of disciplining dentists who received complaints to the Legislative Budget Board that year. But a review by the Austin American-Statesman shows a rate of 5.69 percent, discounting the 36 warning letters issued from October 1998 through September 1999.

Now that issuing a warning letter does legally count as disciplining a dentist — and now that such letters are public information — the board has not issued a single one.

When asked about this shift, Hill said: “Does it appear that the board is trying to hide the reasons it dismisses cases? I don’t think so. Does it appear that the board is trying to hide the reasons it has concerns about a case? No.”

Moncrief said he is not alarmed that the agency has stopped issuing warning letters since his bill became law, and he sa id he thinks the revived agency is stronger than it was in the past.

Others who have worked for the agency disagree.

Santos Serna, whose tenure at the dental board spanned years before and after the sunset commission, said that when the agency was revived, it came back with changes that weakened consumer protection.

For example, staff members’ reports to the board secretary recommending further investigation never disclosed the names of the dentists involved, he said. Now they do, and Serna said that has led to a greater number of complaints being dismissed and opens the board to accusations of playing favorites.

The policy, as well as the confidentiality of complaints, “should be looked at and rescinded,” he said. “The question to ask is: ‘Does this protect the public, or does this protect the dentist?’ The way you look at it now, it protects the dentist.”

Hill said the policy does not shield dentists, but he add ed, “Does it put a fair amount of faith in the board secretary? Yes, it does . . . just like the governor does.”

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