Lipton v. Arizona Dental Board

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

JACK I. LIPTON, Plaintiff/Appellant,

v.

ARIZONA STATE BOARD OF DENTAL EXAMINERS,
Defendant/Appellee.

No. 1 CA-CV 13-0746
FILED 2-26-2015

Appeal from the Superior Court in Maricopa County
No. LC 2011-000713-001
The Honorable Crane McClennen, Judge

AFFIRMED

COUNSEL

Jack I. Lipton, Camp Verde
Plaintiff/Appellant in Propria Persona

Arizona Attorney General’s Office, Phoenix
By Mary DeLaat Williams
Counsel for Defendant/Appellee

MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Patricia K. Norris and Judge Randall M. Howe joined.
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Decision of the Court

D O W N I E, Judge:

¶1 Jack Lipton appeals the superior court’s judgment affirming
disciplinary action taken against him by the Arizona State Board of Dental
Examiners (“the Board”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 R.H. filed a complaint with the Board, alleging a number of
deficiencies in dental treatment she received from Dr. Lipton. The next
month, E.C. filed a complaint describing problems with a crown he
received from Dr. Lipton. Both R.H. and E.C. also complained about
billing matters.

¶3 The Board’s Investigative Interview Panel (“Panel”)
interviewed R.H., E.C., and Dr. Lipton. See Ariz. Rev. Stat. (“A.R.S.”)
§ 32-1263.02(B) (“The board or its designees shall conduct necessary
investigations,” and the results of investigations by a designee “shall be
forwarded to the board for its review.”). Dr. Lipton’s counsel also
participated in the Panel proceedings.

¶4 Regarding R.H., the Panel concluded Dr. Lipton provided
inadequate treatment planning, performed inadequate crown and bridge
work on several teeth, and performed inadequate endodontics on one
tooth. Regarding E.C., the Panel determined Dr. Lipton performed
inadequate crown and bridge work on one tooth. In both cases, the Panel
concluded Dr. Lipton committed unprofessional conduct under A.R.S.
§ 32-1201(21)(n) and recommended that the Board take disciplinary action
against him. Dr. Lipton disputed the Panel’s findings and recommended
sanctions.

¶5 R.H., E.C., and Dr. Lipton’s attorney subsequently appeared
before the Board. The Board ultimately rejected the Panel’s findings of

1 The statement of facts in the opening brief fails to cite to the record.
See ARCAP 13(a)(4) (statement of facts shall include “appropriate
references to the record”). When a litigant fails to include citations to the
record, the court may disregard that party’s unsupported factual narrative
and draw the facts from the opposing party’s properly documented brief
and/or the record on appeal. Ariz. Dep’t of Econ. Sec. v. Redlon, 215 Ariz.
13, 15, ¶2, 156 P.3d 430, 432 (App. 2007).

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inadequate treatment planning and endodontics as to R.H. but accepted
its findings of inadequate crown and bridge care. The Board ordered Dr.
Lipton to pay $5002 in restitution to R.H. and complete 12 hours of
continuing education. The Board accepted the Panel’s findings as to E.C.
and ordered Dr. Lipton to pay $1080 in restitution and complete four
hours of continuing education.

¶6 Dr. Lipton filed petitions for rehearing or review. He also
asked another dentist, Dr. Dischler, to review the complainants’
radiographs and submitted Dr. Dischler’s conclusions to the Board. The
Board denied the petitions for rehearing and review.

¶7 Dr. Lipton filed a complaint for judicial review in the
superior court. See A.R.S. § 12-904(A). After considering briefing and oral
argument, the court affirmed the Board’s final decisions. Dr. Lipton
timely appealed. We have jurisdiction pursuant to A.R.S. § 12-913. See
Svendsen v. Ariz. Dep’t of Transp., 234 Ariz. 528, 533, ¶ 13, 323 P.3d 1179,
1184 (App. 2014) (section 12-913 construed as allowing court of appeals
review though it says “supreme court”).

DISCUSSION

¶8 The Board regulates dentistry in Arizona. It may take
disciplinary action against licensees for various reasons, including
unprofessional conduct. See A.R.S. § 32-1263(A)(1). Unprofessional
conduct is defined as “any conduct or practice that constitutes a danger to
the health, welfare or safety of the patient.” A.R.S. § 32-1201(21)(n).

¶9 In reviewing a judgment upholding the decision of an
administrative agency, we independently review the record to assess
whether substantial evidence supports the determination. Golob v. Ariz.
Med. Bd., 217 Ariz. 505, 509, ¶ 11, 176 P.3d 703, 707 (App. 2008). We will
uphold the agency’s decision if it is supported by substantial evidence and
is not contrary to law or arbitrary and capricious. Id.; see also A.R.S. § 12-
910(E). We view the evidence in the light most favorable to upholding the
Board’s decision. See Shaffer v. Ariz. State Liquor Bd., 197 Ariz. 405, 409,
¶ 20, 4 P.3d 460, 464 (App. 2000); Baca v. Ariz. Dep’t of Econ. Sec., 191 Ariz.
43, 46, 951 P.2d 1235, 1238 (App. 1997).

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I. Sufficiency of the Evidence2

A. R.H.

¶10 R.H. initially received treatment from Dr. Lipton. She later
received care from Dr. Traylor and two endodontists. The Panel
subpoenaed R.H.’s records from each of these providers, and those files
are part of the administrative record. Dr. Traylor’s x-rays and records
note problems with each of the teeth at issue, including open margins and
veneers falling off.

¶11 The record does not support Dr. Lipton’s contention that the
Board failed to review all of R.H.’s x-rays. First, we presume that an
administrative board considers all relevant evidence before it. See Perry v.
Indus. Comm’n, 112 Ariz. 397, 398, 542 P.2d 1096, 1097 (1975). Moreover,
minutes from an October 2011 Board meeting reflect a request by
Dr. Lipton’s counsel that “the Board review the x-rays in the records.”
One Board member responded that “he did review the records very
thoroughly.” And the Board obviously considered the record relating to
the Panel’s findings and conclusions carefully because it accepted some of
those findings and rejected others.

¶12 Additionally, we lack a complete transcript of the Board
proceedings.3 It is the duty of the appealing party to ensure that the
appellate court receives a complete record. Rancho Pescado, Inc. v. Nw.
Mut. Life Ins. Co., 140 Ariz. 174, 189, 680 P.2d 1235, 1250 (App. 1984).
Where the record is incomplete, we presume the missing portions would

2 To the extent Dr. Lipton suggests the Board was required to prove
unprofessional conduct by clear and convincing evidence, he has waived
this argument by failing to raise it either at the administrative level or in
the superior court. See DeGroot v. Ariz. Racing Comm’n, 141 Ariz. 331, 340,
686 P.2d 1301, 1310 (App. 1984) (“The general rule is that failure to raise
an issue before an administrative tribunal precludes judicial review of that
issue on appeal unless the issue is jurisdictional in nature.”). Moreover,
he concedes in his opening brief that the standard of proof for cases not
involving constitutional claims is a preponderance of the evidence.
3 The Board provided Dr. Lipton with audio recordings of the Panel
interviews and Board meetings. Dr. Lipton has provided only limited
transcript excerpts.

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support the findings made by the agency. See Bee-Gee Inc. v. Ariz. Dep’t of
Econ. Sec., 142 Ariz. 410, 414, 690 P.2d 129, 133 (App. 1984).

¶13 Dr. Lipton also contends the Board should have ordered an
independent clinical evaluation of R.H. However, the Board has no
obligation to do so. See A.R.S. § 32-1263.02(D) (A “patient may be referred
for a clinical evaluation at the discretion of the board.”) (emphasis added).
The Board had significant evidence before it and, in the exercise of its
discretion, could have reasonably concluded that an independent
examination was unnecessary. It is also important to note that the Board
members may rely on their own expertise in resolving the complaints
before them. See Croft v. Ariz. State Bd. of Dental Exam’rs, 157 Ariz. 203,
208, 755 P.2d 1191, 1196 (App. 1988) (In assessing the sufficiency of
evidence in administrative proceedings, courts should “show a certain
degree of deference to the judgment of the agency based upon the
accumulated experience and expertise of its members.”).

¶14 Dr. Lipton argues the radiographs he provided “were not
considered or given the weight of the radiographs provided by another
clinician months later.” However, substantial evidence exists to support
an agency’s decision if either of two inconsistent factual conclusions is
supported by the record. E. Vanguard Forex, Ltd. v. Ariz. Corp. Comm’n, 206
Ariz. 399, 409, ¶ 35, 79 P.3d 86, 96 (App. 2003); see also Petras v. Ariz. State
Liquor Bd., 129 Ariz. 449, 452, 631 P.2d 1107, 1110 (App. 1981). Substantial
evidence supports the Board’s determination that Dr. Lipton performed
inadequate crown and bridge work as to R.H., thereby engaging in
unprofessional conduct.4

B. E.C.

¶15 The Board concluded Dr. Lipton engaged in unprofessional
conduct in treating E.C. based on one crown that he placed. The record
supports this determination.

¶16 The Board appointed Dr. Green to perform an independent
clinical evaluation of E.C. Dr. Green determined Dr. Lipton’s crown-
related work was inadequate because of an “open margin,” noted E.C.’s
tooth was “starting to decay,” and recommended corrective treatment.

4 Although Dr. Lipton disputes the Board’s findings, he does not
contend the conduct found by the Board would not constitute
“unprofessional conduct,” as statutorily defined.

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¶17 The Board had before it Dr. Green’s clinical examination,
E.C.’s dental records, x-rays, and clinical notes. One Board member
commented that “the records were thoroughly reviewed” and noted “a
continuing pattern of crown and bridge issues.”

¶18 Dr. Lipton implicitly asks us to reweigh the evidence,
arguing he “was judged based on an independent clinical evaluation
performed 9 months after [E.C.’s] final treatment” and asserting E.C.
contributed to, if not caused, the problems with the crown. However, we
do not reweigh the evidence on appeal. See Elia v. Ariz. State Bd. of Dental
Exam’rs, 168 Ariz. 221, 226, 812 P.2d 1039, 1044 (App. 1990) (substantial
evidence may exist despite conflicting testimony); Petras, 129 Ariz. at 452,
631 P.2d at 1110. Nor does this Court function as a “super agency” by
substituting its own judgment for that of the agency where factual
questions and agency expertise are involved. DeGroot, 141 Ariz. at 336,
686 P.2d at 1306.

¶19 The Board was not required to accept Dr. Lipton’s
contention that the open margin resulted from poor dental hygiene or
events occurring after his treatment of E.C. “[W]here there is room for
two opinions, the action is not arbitrary or capricious if exercised honestly
and upon due consideration, even though it may be believed that an
erroneous conclusion has been reached.” Petras, 129 Ariz. at 452, 631 P.2d
at 1110.

C. Restitution

¶20 The Board ordered Dr. Lipton to pay $5002 in restitution to
R.H. and $1080 to E.C. Dr. Lipton challenges the restitution orders,
arguing the complainants will receive windfalls because they owed
“significant balances.”

¶21 The Board has the authority to order restitution. A.R.S.
§ 32-1263.01(A)(6). “We will not disturb the penalty imposed by an
administrative body unless there has been a clear abuse of discretion.”
Culpepper v. State, 187 Ariz. 431, 438, 930 P.2d 508, 515 (1996).

¶22 R.H. stated she had paid $7565 for Dr. Lipton’s services and
had been billed an additional $4058. The Panel recommended restitution
for “all crowns and buildups and gingivectomy on teeth #3, 4, 7, 10, 11, 15,

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and 21.” R.H.’s account history reflects billings in excess of $5002 for the
teeth at issue.5 The record thus supports the restitution award to R.H.

¶23 Regarding E.C., Dr. Lipton acknowledges that “[c]harges for
services for tooth #14 in question totaled $1080 and E.C. made payments
of $5000.” As with R.H., the record reflects that the amount ordered in
restitution corresponds to the treatment the Board deemed
unprofessional.

¶24 Dr. Lipton’s assertion he was merely an associate and did
not set or receive billings for the dental practice does not negate the
Board’s authority to order restitution for treatment he provided and billed
for. How to satisfy the restitution orders is an issue for Dr. Lipton and the
practice to resolve.

II. Evidentiary Hearing

¶25 Dr. Lipton requested an evidentiary hearing for the first time
in his reply brief filed in the superior court. The Board argued, inter alia,
that the request was untimely, and the superior court denied it. We will
affirm the superior court’s ruling if it is correct for any reason. See Gary
Outdoor Adver. Co. v. Sun Lodge, Inc., 133 Ariz. 240, 242, 650 P.2d 1222, 1224
(1982).

¶26 A.R.S. § 12-910(A) states: “If requested by a party to an
action within thirty days after filing a notice of appeal [in the superior court],
the court shall hold an evidentiary hearing . . . to the extent necessary to
make [a] determination” in accord with § 12-910(E). (Emphasis added.).
Dr. Lipton did not request an evidentiary hearing until January 2013, over
one year after filing his complaint for judicial review. Under these
circumstances, the superior court did not err by failing to conduct an
evidentiary hearing.

5 In his reply brief, Dr. Lipton agrees “that charges for the services
that the Panel referenced totaled $5024.”

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CONCLUSION

¶27 For the reasons stated, we affirm the judgment of the
superior court. We deny Dr. Lipton’s request for an award of attorneys’
fees and costs incurred on appeal, as he is not the prevailing party. The
Board is awarded its costs on appeal upon compliance with ARCAP 21.

:ama

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