                                                        Mar 13 2014, 10:11 am
FOR PUBLICATION


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

STEVEN P. POLICK                                GREGORY F. ZOELLER
Polick P. Polick & Associates, P.C.             Attorney General of Indiana
Griffith, Indiana
                                                FRANCES BARROW
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DONALD R. WALKER, D.D.S.,                       )
                                                )
       Appellant-Petitioner,                    )
                                                )
              vs.                               )      No. 49A02-1307-MI-593
                                                )
STATE BOARD OF DENTISTRY,                       )
                                                )
       Appellee-Respondent.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Theodore M. Sosin, Judge
                           Cause No. 49D02-1211-MI-44681


                                      March 13, 2014

                               OPINION - FOR PUBLICATION

BARNES, Judge
                                           Case Summary

        Donald Walker, D.D.S., appeals the trial court’s denial of his petition for judicial

review of a decision by the State Board of Dentistry (“the Board”). We affirm.

                                                 Issues

        Dr. Walker raises two issues, which we restate as:

                I.      whether the Board properly found that Dr. Walker
                        violated Indiana Code Section 25-1-9-4(a)(3) by
                        failing to provide continual and direct supervision to
                        Patient A; and

                II.     whether the Board properly found that Dr. Walker
                        violated Indiana Code Section 25-1-9-4(a)(4)(B) by
                        using the “hand over mouth” technique on Patient A.

                                                 Facts

        Dr. Walker is a dentist licensed in Indiana.               Patient A1 saw Dr. Walker in

September 2008 to have her wisdom teeth extracted. When she woke after the surgery,

Patient A had a “strange feeling that [she] couldn’t breathe.” App. p. 97. She felt like

she was “gasping for air.” Id. Dr. Walker’s dental hygienist told Patient A that she could

“breathe just fine and that [she] needed to stop, because [she] was scaring other patients.”

Id. Dr. Walker then placed his hand over Patient A’s mouth and held it there for a few

seconds. Patient A was “really scared” by Dr. Walker’s actions. Id.

        Two hygienists then helped Patient A to another room, where they left her on a

bench. According to Patient A, no one remained in the room with her. Patient A was

“drowsy from the sedation” and tried to lay down on the bench so that she would not fall

1
 At the time of the hearing before the Board in October 2012, Patient A testified that she was twenty-five
years old.
                                                    2
off. Id. at 98. Patient A’s husband picked her up at the office’s back door. Patient A felt

like “they were rushed to get [her] out of there and away from the other patients.” Id.

Patient A was sobbing and wrote a note to her husband explaining what had happened.

Patient A went to a different dentist for the follow-up care.

         Patient A filed a complaint with the Attorney General’s Consumer Protection

Division (“CPD”). In October 2011, the CPD filed a complaint with the Board against

Dr. Walker. A hearing was held before the Board in October 2012. The issues before the

Board concerned Dr. Walker’s use of the “hand over mouth” technique on Patient A and

whether Patient A was properly observed after the surgery. After a hearing, the Board

found:

               10.   When Patient A awoke from the sedation, she felt like
                     she could not breathe. Patient A became apprehensive
                     and excited. Patient A was told that her behavior was
                     scaring other patients.

               11.   Respondent then placed his hand over Patient A’s
                     mouth, a technique known as “hand over mouth,” in
                     order to quiet Patient A. This evoked feelings of fear
                     in Patient A.

               12.   The “hand over mouth” technique was previously
                     taught in dental school and accepted within the dental
                     community for pediatric patients up until the 1980s.
                     The “hand over mouth” technique is not current
                     professional theory or practice for use on adult
                     patients.

               13.   At some point during Patient A’s recovery, she was
                     moved to another room which Respondent’s staff
                     referred to as the “holding” room. This room had a
                     door which led to a parking lot where patients were
                     picked up following surgery. Patient A was placed on


                                              3
                     a bench in this room, and Patient A reported that she
                     almost fell off the bench.

              14.    Respondent’s staff testified that an assistant or
                     hygienist remained with the patient while in the
                     “holding room” by either standing beside the patient or
                     observing from an adjacent room while providing
                     treatment to another patient.

              15.    Direct supervision is not being provided[,] however,
                     when the hygienist is in an adjacent room while
                     providing treatment to another patient.

              16.    The only individual with credible testimony and
                     personal knowledge who testified as to whether Patient
                     A, in particular, remained under direct and continuous
                     supervision in the “holding” room was Patient A.
                     Patient A testified that no one remained in the room
                     with her.

                              ULTIMATE FINDINGS OF FACT

              1.     Respondent violated Ind. Code § 25-1-9-4(a)(3) in that
                     Respondent violated 828 IAC 3-1-6.5(c)(10), by
                     failing to provide continual and direct supervision by a
                     person trained in basic cardiac life support to Patient
                     A, as evidenced by the fact that Patient A was not
                     provided continual and direct supervision in
                     Respondent’s “holding” room.

              2.     Respondent violated Ind. Code § 25-1-9-4(a)(4)(B) in
                     that Respondent has continued to practice although he
                     has become unfit to practice due to his failure to keep
                     abreast of current professional theory or practice as
                     evidenced by the fact that he used, and continues to
                     use, the “hand over mouth” technique on adult
                     patients, including Patient A.

App. pp. 10-12. The Board ordered certain sanctions, including the imposition of an

indefinite probation and fines and costs.



                                            4
       Dr. Walker filed a petition for judicial review. After briefs were filed and a

hearing was held, the trial court issued findings of fact and conclusions thereon denying

Dr. Walker’s petition. The trial court found there was substantial evidence to find that

Dr. Walker knowingly violated 828 IAC 3-1-6.5(c)(10) by failing to provide continual

and direct supervision of Patient A by a person trained in basic cardiac life support. The

trial court refused to reweigh the evidence or judge Patient A’s credibility and found that

the Board’s interpretation of the phrase “continual and direct supervision” was

reasonable. Id. at 70. Further, the trial court found there was substantial evidence to find

that the “hand over mouth” technique was not “current professional theory or practice.”

Id. at 72. The trial court noted that the Board could accept the opinion of one expert over

another. Dr. Walker now appeals.

                                          Analysis

       In an appeal involving a decision of an administrative agency, our standard of

review is governed by the Administrative Orders and Procedures Act (“AOPA”), and we

are bound by the same standard of review as the trial court. Dev. Servs. Alternatives, Inc.

v. Indiana Family & Soc. Servs. Admin., 915 N.E.2d 169, 176 (Ind. Ct. App. 2009),

trans. denied. We do not try the case de novo and do not substitute our judgment for that

of the agency. Musgrave v. Squaw Creek Coal Co., 964 N.E.2d 891, 899 (Ind. Ct. App.

2012), trans. denied.    We will reverse the administrative decision only if it is: (1)

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (2)

contrary to a constitutional right, power, privilege, or immunity; (3) in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right; (4) without observance of

                                              5
procedure required by law; or (5) unsupported by substantial evidence. Ind. Code § 4-

21.5-5-14.

       Courts that review administrative determinations are prohibited from reweighing

the evidence or judging the credibility of witnesses and must accept the facts as found by

the administrative body. Indiana State Bd. of Educ. v. Brownsburg Cmty. Sch. Corp.,

865 N.E.2d 660, 665-66 (Ind. Ct. App. 2007). A court may not substitute its judgment

for that of the agency. Id. Additionally, a court may not overturn an administrative

determination merely because it would have reached a different result. Id.            An

interpretation of statutes and regulations by an administrative agency charged with the

duty of enforcing those regulations and statutes is entitled to great weight unless this

interpretation would be inconsistent with the law itself. Id. at 665. The reviewing court

should generally accept an agency’s reasonable interpretation of regulations and statutes.

Id. Although an appellate court grants deference to an administrative agency’s findings

of fact, no such deference is accorded to its conclusions of law. Musgrave, 964 N.E.2d at

899-900 (citing LTV Steel Co. v. Griffin, 730 N.E.2d 1251, 1257 (Ind. 2000)). The

burden of demonstrating the invalidity of the agency action is on the party who asserts

the invalidity. Id. at 900.

                     I. Failure to Continually and Directly Supervise

       Indiana Code Section 25-1-9-4(a) provides:

              A practitioner shall conduct the practitioner’s practice in
              accordance with the standards established by the board
              regulating the profession in question and is subject to the
              exercise of the disciplinary sanctions under section 9 of this
              chapter if, after a hearing, the board finds . . . (3) a

                                            6
              practitioner has knowingly violated any state statute or rule,
              or federal statute or regulation, regulating the profession in
              question.

The Board found that Dr. Walker violated 828 IAC 3-1-6.5(c)(10), which governs the use

of general anesthesia and deep sedation by dentists and provides: “At the completion of

the anesthetic when continuous monitoring is no longer required, the patient must be

transferred to a recovery facility for continual and direct supervision by a person trained

in basic cardiac life support.”    The Board found that Dr. Walker did not provide

“continual and direct supervision” of Patient A while she was in the holding room.

       On appeal, Dr. Walker argues that the Board applied the wrong definition to the

phrase “direct supervision.” According to Dr. Walker, the Board should have applied the

definitions of “direct supervision” listed in Indiana Code Section 25-13-1-2(i), which

provides: “‘Direct supervision’ means that a licensed dentist is physically present in the

facility when patient care is provided by the dental hygienist,” and Indiana Code Section

25-14-1-1.5(5), which provides: “‘Direct supervision’ means that a licensed dentist is

physically present in the facility when patient care is provided by the dental assistant.”

However, we note that these definitions occur in chapters dealing with “Regulation of

Dental Hygienists by State Board of Dentistry,” Ind. Code Chapter 25-13-1, and

“Regulation of Dentists; Creation of Board,” Ind. Code Chapter 25-14-1. The remaining

statutes in those chapters make it clear that the “direct supervision” definitions apply to

the supervision of a dental hygienist or dental assistant by a licensed dentist. The

definitions simply have no applicability to the supervision of a patient following the

administration of an anesthetic.

                                            7
        The phrase “continual and direct supervision” as used in 828 IAC 3-1-6.5(c)(10) is

not defined. The Board concluded that the phrase “continual and direct supervision” was

not being provided, “however, when the hygienist is in an adjacent room while providing

treatment to another patient.” App. p. 11.               We must determine whether the Board’s

interpretation of the regulation is reasonable. Brownsburg Cmty. Sch. Corp., 865 N.E.2d

at 665. The Board’s interpretation is “entitled to great weight unless this interpretation

would be inconsistent with the law itself.” Id. The purpose of 828 IAC 3-1-6.5(c)(10) is

to require supervision over the patient while the patient recovers. If a hygienist is in

another room providing care for another patient, the recovering patient does not have

adequate supervision in the event of an emergency, i.e., a fall or adverse reaction to the

anesthesia. We conclude that the Board’s interpretation of the regulation is reasonable.

        Dr. Walker also argues that the Board’s finding that he violated the rule is not

supported by substantial evidence.2              Evidence was presented that it was common

procedure in Dr. Walker’s office to take the patient to the “holding room” to wait on their


2
  Dr. Walker argues that the Board failed to make findings of fact regarding whether he “knowingly”
violated the rule. Dr. Walker did not make this argument to the trial court. Rather, he merely argued that
substantial evidence did not exist to show a knowing violation. An appellant may not raise an issue on
appeal that was not first presented to trial court. Sullivan v. City of Evansville, 728 N.E.2d 182, 191 (Ind.
Ct. App. 2000). Consequently, this argument is waived.
         We also note that Dr. Walker relies on Indiana State Bd. of Health Facility Adm’rs v. Werner,
841 N.E.2d 1196, 1207 (Ind. Ct. App. 2006), clarified on reh’g, 846 N.E.2d 669 (Ind. Ct. App. 2006),
trans. denied, which noted that, “although the Board’s findings and conclusions reference [the language of
Indiana Code Section 25-1-9-4(a)], it does not appear that there is a finding that Werner knowingly
violated the regulations or that she has become unfit to practice due to her failure to keep abreast of
current professional theory or practice.” Dr. Walker claims that “[t]he Appellate Court thereupon found
that the Board’s decision was ‘arbitrary and capricious,’ and remanded the case back to the Board for
further proceedings.” Appellant’s Br. p. 13. However, this court found the Board’s decision arbitrary and
capricious on a completely different basis. The failure to find a “knowing” violation played no part in the
decision to remand. Consequently, we do not find Werner persuasive.


                                                     8
ride when the patient was ready to leave. App. p. 121. Typically, one of the assistants

would stay with the patient in the holding room or the hygienist across the hall would

watch the patient while the hygienist was treating another patient. Dr. Walker confirmed

that procedure was used.3 Id. at 134. None of Dr. Walker’s staff testified as to the

procedure used when Patient A was placed in the holding room. As the Board noted, the

only testimony regarding Patient A’s experience in the holding room was given by

Patient A, who testified that she was left alone in the holding room for several minutes

and that no one checked on her.

        The evidence established that Dr. Walker was aware that patients in the holding

room were sometimes supervised by a hygienist who was across the hall treating another

patient. Further, Patient A testified that she was left alone in the holding room, and the

Board found her credible. We cannot reweigh the evidence or judge the credibility of the

witnesses. We conclude that the Board properly found that Dr. Walker violated 828 IAC

3-1-6.5(c)(10) by knowingly failing to provide “continual and direct supervision by a

person trained in basic cardiac life support” to a recovering patient.

3
  Dr. Walker repeatedly argues that there was no evidence he was aware that one of his assistants was not
in the holding room with the patient. However, during his testimony, the following discussion occurred:

                Dr. Burns: According to the testimony given by several different people
                the hygienist might be in the other room watching them. So that’s
                considered not alone?
                The Respondent: No. That’s not considered not alone. . . .
                Dr. Burns: That’s not my question. I asked if that is considered not
                alone. The hygienist is working on a patient and watching through the
                door. Is that what happened?
                The Respondent: Yes. She can –

App. p. 134. He also argues that the dental hygienist watching from another room on one occasion does
not establish a policy or practice. See Appellant’s Reply Br. p. 8. However, the testimony of dental
assistant Sherry Cline made it clear that the practice was not uncommon. App. pp. 122-23.
                                                   9
                        II. Use of Hand Over Mouth Technique

       Indiana Code Section 25-1-9-4(a) provides:

              A practitioner shall conduct the practitioner’s practice in
              accordance with the standards established by the board
              regulating the profession in question and is subject to the
              exercise of the disciplinary sanctions under section 9 of this
              chapter if, after a hearing, the board finds . . . (4) a
              practitioner has continued to practice although the practitioner
              has become unfit to practice due to . . . (B) failure to keep
              abreast of current professional theory or practice.

The Board found that Dr. Walker used the “hand over mouth” technique on Patient A and

that, although this technique was “previously taught in dental school and accepted within

the dental community for pediatric patients up until the 1980s,” the technique “is not

current professional theory or practice for use on adult patients.” App. p. 11.

       Dr. Walker does not dispute that he used the technique on Patient A. Dr. Walker

testified that he did not recall using the hand over mouth technique on Patient A but that

he “[m]ost likely” did so. App. p. 131. Patient A also testified that Dr. Walker put his

hand over her mouth after the surgery. On appeal, Dr. Walker argues that there was no

substantial evidence to support the finding that the hand over mouth technique

demonstrates an unfitness to practice or a failure to keep abreast of current professional

theory or practice. Specifically, Dr. Walker argues that no evidence was presented that

the technique was inappropriate for an adult patient and that no “authoritative medical

literature” was presented to demonstrate that the technique was not current accepted

professional theory or practice. Appellant’s Br. p. 18.




                                            10
       At the hearing, several oral surgeons testified regarding the hand over mouth

technique. Dr. Corbin Partridge testified that patients often panic after surgery. He

testified that the hand over mouth technique is used on children sometimes but that he

had never seen it used on an adult. He also testified that he had never used the technique

on a child or an adult. Dr. John Challman testified that the hand over mouth technique

was taught in the 1970’s to calm screaming children. However, he had never used the

technique on a child or an adult. Dr. Hal Smith testified that the hand over mouth

technique was “an accepted and legitimate technique” on both children and adults. App.

p. 118.       However, he testified that the practice was “[p]robably not” being taught at

dentistry schools anymore but that the “old-timers” knew about it. Id. Dr. Jamie Lemna

testified that he learned the hand over mouth technique during his training at Riley

Hospital in the 1980’s and that the technique was “commonly used” in pediatric dentistry.

Id. at 120.

       Despite Dr. Walker’s argument, we conclude that evidence was presented at the

hearing that supported the Board’s findings. The Board was presented with evidence that

the technique was taught for use on children as late as the 1980’s. However, the experts

gave conflicting testimony on the technique’s use on adults. The Board was free to

believe one expert over another, and we cannot reweigh the evidence or judge the

credibility of witnesses. Dr. Walker cites no authority for his argument that authoritative

medical literature was required. We conclude that substantial evidence supports the

Board’s finding that the hand over mouth technique is not current professional theory or

practice for use on adult patients.      Consequently, substantial evidence supports the

                                             11
Board’s finding that Dr. Walker violated Indiana Code Section 25-1-9-4(a)(4)(B) by

using the “hand over mouth” technique on Patient A.

                                      Conclusion

      The trial court properly denied Dr. Walker’s petition for judicial review regarding

the Board’s findings and conclusions thereon. We affirm.

      Affirmed.

      ROBB, J., and BROWN, J., concur.




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