                        COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Clements and Senior Judge Hodges
Argued at Chesapeake, Virginia


JOHN DOE, D.D.S.
                                           MEMORANDUM OPINION * BY
v.   Record No. 0298-00-1                  JUDGE WILLIAM H. HODGES
                                              OCTOBER 31, 2000
VIRGINIA BOARD OF DENTISTRY


           FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                        AND COUNTY OF JAMES CITY
                      Samuel T. Powell, III, Judge

             James J. Knicely (Dwight G. Rudd; Knicely &
             Associates, P.C., on briefs), for appellant.

             Howard M. Casway, Assistant Attorney General
             (Mark L. Earley, Attorney General; Ashley L.
             Taylor, Jr., Deputy Attorney General; Jane D.
             Hickey, Senior Assistant Attorney General,
             on brief), for appellee.


     John Doe, D.D.S. (appellant) appeals a decision of the

circuit court affirming an order of the Virginia Board of

Dentistry ("the Board") reprimanding appellant for violating

certain statutes and regulations during the treatment of a

patient.    Appellant argues the trial court erred in:   (1)

affirming the Board's pre-hearing distribution of evidence to the

Board members and affirming the Board's refusal to exclude

irrelevant and prejudicial evidence; (2) affirming the Board's

statement of particulars and allowing the Board to make findings

     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
on offenses not charged; (3) affirming the Board's improper

exclusion of evidence; (4) finding that the record contained

substantial evidence to support the Board's decision; and (5)

affirming the involvement of the Board's counsel in the Board's

deliberations.    We find that the Board did not provide appellant

with an appropriate statement of particulars and erred in making

findings on an offense for which the Board did not charge

appellant.    Therefore, we reverse and dismiss the case.   Because

we reverse and dismiss the case on this issue, we need not address

appellant's remaining four issues.

                              BACKGROUND

     On February 11, 1998, the Board sent appellant a letter

informing him that a special conference committee would hold an

informal conference pursuant to Code §§ 9-6.14:11 and

54.1-2400(10) to review allegations that appellant had violated

Code §§ 54.1-2706(A)(5), -2706(A)(9), -2706(A)(10), 18 VAC

60-20-150(B)(5) and 18 VAC 60-20–170(4).    The letter alleged:

             On or about March 4, 1997, Patient [A]
             presented to you with Tooth #7 broken. You
             failed to properly evaluate this patient, to
             include radiographs; and recommended a
             treatment plan of extraction of Teeth # 7
             through #10 and placement of upper and lower
             partials without discussing other treatment
             options. On or about March 17, 1997, this
             patient was evaluated by another dentist who
             opined that your treatment plan was
             unnecessary.

     On March 27, 1998, the special conference committee met and

determined the allegations against appellant were founded.        The

                                 - 2 -
committee concluded appellant had violated the cited Code

sections.   On April 10, 1998, the committee issued an order

imposing a reprimand on appellant.      The committee found:

            Appellant failed to properly evaluate
            [Patient A], to include taking radiographs,
            and recommended a treatment plan of
            extraction of Teeth #7 through #10 and
            placement of upper and lower partials
            without discussing other treatment options.
            He caused a cast metal framework to be
            constructed without said proper evaluation.

     On May 8, 1998, appellant sent a letter to the executive

secretary of the Board objecting to the "substantive

conclusions" of the order.   Appellant also objected to the order

because it did "not provide sufficient factual findings to

establish each of the alleged violations."     Appellant requested

that the committee reconsider its decision and "replace the

generalized findings of fact with specific factual findings that

support each conclusion of law."   In the event that the

committee was unwilling to reconsider its decision, appellant

requested that the Board provide him with "the particular

factual allegations that the Board believes establish each of

the five alleged separate violations of law so that [appellant]

[could] prepare his defense as to each such violation before the

full Board."   The committee refused to amend the order.

Appellant appealed the order and proceeded to a formal hearing

before the Board.




                                - 3 -
     On May 19, 1998, appellant requested that the Board provide

him with "specific factual allegations as to the manner in which

he violated" each of the statutes and regulations cited by the

committee.    Appellant also requested identification of the

"specific Code provision or Board regulation he [wa]s charged

with violating under Code § 54.1-2706(A)(9) and 18 VAC

60-20-170(4)."

     On June 4, 1998, the Board issued a notice of hearing.     The

statement of particulars stated as follows:

             The Board alleges that [appellant] has
             violated [Code] §[§] 54.1-2706(A)(5),
             [-2706(A)](9) and [-2706(A)](10) . . . and
             18 VAC 60-20-150(B)(5) and [18 VAC]
             60-20-170(4) . . . in that:

             On or about March 4, 1997, Patient A
             presented to [appellant] with Tooth #7
             broken. [Appellant] failed to properly
             evaluate this patient, to include taking
             radiographs, and recommended a treatment
             plan of extraction of Teeth #7 through #10
             and placement of upper and lower partials
             without discussing other treatment options.
             He caused a cast metal framework to be
             constructed without said proper evaluation.
             On or about March 17, 1997, this patient was
             evaluated by another dentist who opined that
             Tooth # 7 could be repaired and that
             [appellant]'s treatment plan was
             unnecessary.

Thus, the Board's statement of particulars was essentially

identical to the facts provided in the notice of informal

hearing, with the exception that the Board's statement included

a sentence concerning the construction of a cast metal

framework.

                                 - 4 -
     On June 18, 1998, appellant filed a Motion to Strike the

Statement of Particulars and/or Dismiss the Complaint on the

grounds that the statement of particulars contained "conclusory

allegations that [appellant] violated three statutory provisions

and two regulations of the Board without sufficient factual

specificity . . . so that it was impossible for [appellant] to

determine what specific conduct the Board alleges he engaged in

as to violate the respective alleged violations of law."

Appellant further contended the statement of particulars, by

citing the "catch-all" provisions of Code §§ 54.1-2706(A)(9) and

18 VAC 60-20-170(4), did not specify which laws or regulations

appellant allegedly violated.   Thus, appellant was unable to

determine the violations with which he was charged or the

conduct that resulted in the alleged violations.

     The Board denied the motion to strike and scheduled a date

for a formal hearing.   Appellant renewed the motion to strike,

which again the Board denied.

     The formal hearing was held on September 18, 1998.     Prior

to the hearing, appellant renewed his motion to strike and

dismiss, which was denied.   The Board made the following

findings of fact, in pertinent part:

          On or about March 4, 1997, [appellant], by
          his own admission, failed to properly
          evaluate Patient A. In particular,
          [appellant] negligently failed to adequately
          document and evaluate a clinical
          examination, including radiographs, a


                                - 5 -
          recorded periodontal examination, treatment
          plan and caries charting.

          Furthermore, [appellant] recommended the
          placement of a maxillary removable partial
          denture without documenting other treatment
          options or the discussion of risks.

The Board found that these facts constituted a violation of Code

§§ 54.1-2706(A)(5) and –2706(A)(9), 18 VAC 60-20-150(B)(3), 18

VAC 60-20-150(B)(5), and 18 VAC 60-20-170(4).

     Appellant appealed the Board's decision to the circuit

court on the ground that the Board violated his due process

rights because the statement of particulars was "vague,

overbroad and insufficiently specific as to the facts supporting

each violation of law . . . so as to prevent [appellant] from

understanding the nature of the charges against him and

preparing an adequate defense."   Appellant also argued that the

Board's finding that he violated 18 VAC 60-20-150(3), a

regulation that the Board had never cited in its charges or

statement of particulars, was a violation of his due process

rights.

     The trial court affirmed the Board's findings, stating in

its order that the notice and hearing and statement of

particulars issued by the Board were "proper and reasonable and

not so overbroad that . . . [a]ppellant was constitutionally

deprived of any right."




                              - 6 -
                               ANALYSIS

     "Procedural due process rules are meant to protect persons

not from the deprivation, but from the mistaken or unjustified

deprivation of life, liberty, or property."   Carey v. Piphus, 435

U.S. 247, 259 (1978).   The rules "guarantee[ ] that a person shall

have reasonable notice and opportunity to be heard before any

binding order can be made affecting the person's rights to liberty

or property."   McManama v. Plunk, 250 Va. 27, 34, 458 S.E.2d 759,

763 (1995).

     We find that the trial court erred in ruling that the Board's

statement of particulars gave appellant sufficient notice of the

charges against him.    The Board alleged appellant violated Code

§ 54.1-2706(A)(9).   This statute provides that the Board may

reprimand a licensee, or suspend or revoke a license for

"violating, assisting, or inducing others to violate any provision

of this chapter or any Board regulation."   Code § 54.1-2706(A)(9).

     In addition, the Board alleged appellant violated 18 VAC

60-20-170(4), which provides that unprofessional conduct includes

"[c]ommitting any act in violation of the Code . . . reasonably

related to the practice of dentistry and dental hygiene."

Although appellant, on several occasions, specifically requested

the Board to identify the precise statute or regulation to which

the Board was referring by citing these broad, "catch-all"

provisions, the Board failed to provide appellant with an answer.

Moreover, the Board failed to identify the conduct of appellant

                                - 7 -
that established the unspecified violation or violations.   We

agree with appellant that this "drag-net" approach violated his

due process rights.

     The Board also alleged that appellant violated Code

§ 54.1-2706(A)(5) which provides for a reprimand or license

revocation for "[i]ntentional or negligent conduct in the practice

of dentistry or dental hygiene which causes or is likely to cause

injury to a patient."   The Board's statement of particulars did

not specify what conduct caused or was likely to cause injury to

the patient.   The Board alleged only that appellant failed to take

a radiograph of the patient, caused a cast metal framework to be

constructed, and recommended a course of treatment which was

unnecessary.   Nothing in the Board's statement of particulars

indicated the patient was injured or was likely to be injured by

appellant's conduct.

     Likewise, the Board's statement of particulars failed to

allege the particular standard of ethics or dental hygiene or the

specific conduct of appellant that resulted in an allegation that

appellant violated Code § 54.1-2706(A)(10). 1




     1
       Code § 54.1-2706(A)(10) provides that the Board can
reprimand, or suspend or revoke the license of a dentist for
"[c]onducting his practice in a manner contrary to the standards
of ethics of dentistry or dental hygiene or in a manner
presenting a danger to the health and welfare of his patients or
to the public."


                               - 8 -
     Furthermore, after the formal hearing, the Board found

appellant had violated 18 VAC 60-20-150(B)(3), 2 a record keeping

regulation which the Board had never alleged appellant violated.

The Board contends that the basis for this violation was

appellant's admission during the hearing that he understood that

he "need[s] to make more notations [in his patients' records] so

that other people can see what was going on."

     In In Re Ruffalo, 390 U.S. 544 (1968), an attorney was

charged with twelve counts of misconduct.   During his testimony at

his disciplinary hearing, the attorney made a statement resulting

in the Board of Commissioners on Grievances and Discipline adding

a thirteenth charge.   The United States Supreme Court held that

the lack of notice to the attorney as to "the reach of the

grievance procedure and the precise nature of the charges"

deprived the attorney of procedural due process.   Id. at 552.   The

Court stated:

          These are adversary proceedings of a
          quasi-criminal nature. The charge must be
          known before the proceedings commence. They
          become a trap when, after they are underway,
          the charges are amended on the basis of
          testimony of the accused. He can then be
          given no opportunity to expunge the earlier
          statements and start afresh.




     2
       18 VAC 60-20-150(B)(3) provides that a dentist shall
maintain patient records, including "diagnosis and treatment
rendered," for a specified period of time and for purposes of
review by the Board.

                               - 9 -
Id. at 551.   Accordingly, we find that the Board erred in

finding that appellant violated a regulation for which he was

not charged in the notice of formal hearing.

     Prior to his formal hearing before the Board, appellant was

entitled to "reasonable notice of . . . the matters of fact and

law asserted or questioned" by the Board.   Code

§ 9-6.14:12(B)(iii).   We find that the Board failed to provide

appellant with reasonable notice of the facts and law asserted.

As in the criminal context, the Board

          should be required to fairly particularize
          the charge or charges [it] intends to
          prosecute, and not be permitted to go on a
          fishing expedition with a drag net. "The
          bill should be directed at those charges as
          to which the [Board] expects to introduce
          supporting testimony."

Casper v. City of Danville, 160 Va. 929, 933, 169 S.E. 734, 735

(1933) (citation omitted).

          "[E]very one accused of crime is entitled to
          have stated in plain and unequivocal terms
          the offense for which he is to be
          prosecuted. This much will be required even
          in a civil case. The State has no desire to
          leave one of its citizens in doubt or
          uncertainty as to any offenses charged
          against him. Prosecuting attorneys know, or
          ought to know, in advance, what they can
          prove, and ordinary justice demands that
          they should give the accused a fair
          statement of the offense for which he is to
          be prosecuted."

Id. at 932, 169 S.E. at 735 (citation omitted) (emphasis added).




                               - 10 -
     For these reasons, we find that the trial court erred in

ruling that the Board's statement of particulars was sufficient.

Accordingly, we reverse and dismiss this case.

                                        Reversed and dismissed.




                              - 11 -
